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LIBRARY 

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THE  UNIVERSITY 
OF  CALIFORNIA 


Report  nl'  ilic  Commission 


APPOINTED   I'.Y    HIS    EXCEL1  i 

'I'l  1  M  )R     (  1 1       Til  }'. 


STATE   <>!•'    CO  I. OK  ADO, 


REVISE  THE   LAWS  OF  THE  STATE 


\TIXC.  THI-: 


APPROPRIATION, 

Distribution  /  Use  of  Water 


WITH    Till-:    DRAFT    OF    A    P.II.L    1'RKl'ARKL)    BY    THF. 

.[MISSION  I-'OR  F:NACTMF;NTT  BY  THF, 


GENERAL     A^SEMB  LY. 


1\  WEI  T.  C.   HENRY,         J.  S.  GRKKM-, 

COMMISSIONERS. 


3D  IE  3ST  AT  ^3  IR,,      189O. 


I>RI.\TF.1>   BY   M'THORITY. 


,   COLORADO: 
:..\NTI>   I.ITH.   CO.,   SiAi: 

1890. 


Report  of  the  runmiissinii 


Al'l'i  )1N  1  HI)    HV    HIS    KXCKU.I 
THK    C.OVKKNOK    OF    THK 


STATE   OK   COLORADO, 

TO 

REVISE  THE  LAWS  OF  THE  STATE 

REGVLATlXr,    Till-; 

APPROPRIATION, 

Distribution  ,*•  Use  of  Water 


WITH   THE   DRAFT   OF  A   BILL   PREPARED   BY   THE 
COMMISSION   FOR   ENACTMENT   BY  THE 


GENERAL     ASSEMBLY. 


E.  T.  WELLS,         T.  C.  HENRY,         J.  S.  GREENE, 

COMMISSIONERS. 


ZDZEHsTVIEIR,,      189O. 


PRINTED  BY  AUTHORITY. 


DENVER,  COLORADO : 

THB  COLLIBR  SL  CLEAVELAND  LITII.  Co.,  STATE  PRINTERS. 
1890. 


REPORT. 


To  ///;•  HONORABLE  JAMES   RICE, 
Secretary  of  State, 

Of  the  State  of  Colorado: 
SIR: 

The  undersigned,  who  were  appointed  by  His  Excel- 
lency the  Governor,  in  pursuance  of  the  act  of  April  i, 
1889,  a  Commission  to  prepare  a  code  of  laws  concerning 
the  waters  of  the  State,  respectfully  report  that  having 
filed  the  oath  of  office,  they  entered  upon  their  duties 
and  have  prepared  a  code  for  regulating  the  appropria- 
tion, distribution  and  use  of  water  for  all  purposes,  the 
adjudication  of  the  priorities  of  right  in  respect  thereto, 
the  construction  of  drainage  works,  the  appropriation 
and  use  of  subterranean  waters,  for  preserving  record 
evidence  of  the  title  to  waters,  and  other  cognate  sub- 
jects with  as  much  particularity  as  it  seems  wise  to  the 
Commission  to  attempt. 

Upon  mature  consideration  of  the  subject  it  has 
seemed  to  the  Commission  that  the  ideas  fundamental 
to  the  system  heretofore  in  force  in  this  State,  to  wit: 
That  a  right  to  the  use  of  water  may  be  acquired  by  the 
diversion  and  application  thereof  to  beneficial  uses  that 
priority  of  appropriation  ought  to  control;  that  unappro- 
priated waters  are  public  property  subject  to  appropria- 
tion by  all;  that  all  persons  and  corporations  diverting 
the  waters  of  the  natural  streams  for  use  wholly  or  in 
part  by  others,  are  public  servants  and  subject  to  regula- 
tion, and  that  the  rights  of  all  persons  entitled  to  divert 
water  from  the  natural  streams  in  each  principal  drain- 
age basin  may  properly  be  ascertained  and  determined 
in  one  proceeding,  and  regulated  by  one  controlling 


4  REPORT    OF  THE   COMMISSION 

authority,  were  founded  in  a  wise  consideration  of  the 
nature  of  the  subject  matter,  and  deserve  perpetuation. 

For  the  reasons  above  stated  we  directed  our  labors 
mainly  to  a  revision  and  arrangement  of  the  laws  hereto- 
fore in  force,  with  such  changes  and  additions  as  seem 
to  us  requisite  and  advisable,  and  report  the  result  in  a 
code  of  sixteen  articles,  and  provision  for  the  repeal  of 
all  former  legislation. 

A  brief  statement  of  the  more  important  changes 
and  additional  provisions  suggested,  and  the  reasons 
which  have  prompted  us  therein,  may  be  proper. 

I. 

The  classification  of  the  different  uses  of  water  in  the 
the  Constitution  is  manifestly  imperfect.  No  explicit 
provision  is  made  except  for  those  using  water  for 
domestic  purposes,  for  agricultural  purposes  and  manu- 
facturing purposes.  There  are  evidently  many  uses  of 
water  which  do  not  come  within  either  of  these  classes: 
The  supplying  of  range  cattle  is  strictly  pastoral,  and  not 
agricultural.  The  cultivation  offish  is  neither  a  domes- 
tic use,  agricultural  use  nor  a  manufacturing  use.  The 
supplying  of  locomotive  engines  upon  our  railways  can 
not,  without  a  violation  of  language,  be  called  a  manu- 
facturing purpose.  Where  in  the  Constitutional  classi- 
fication shall  be  placed  the  use  of  water  for  the  operation 
of  our  placer  mines,  or  for  the  extinguishment  of  fires, 
or  for  sustaining  the  trees  upon  the  streets  of  our  cities, 
or  the  grass  or  shrubbery  in  our  public  parks  ? 

The  preference  accorded  by  the  Constitution  to  those 
using  water  for  domestic  purposes  over  those  claiming 
for  any  other  purpose,  and  to  those,  using  water  for  agri- 
cultural purposes  over  those  using  it  for  manufacturing 
purposes,  seems  to  be  both  exceptional  and  unnecessary. 
So  far  as  we  are  advised  there  is  no  other  jurisdiction  in 
which  these  preferences  have  been  established  by  funda- 
mental law,  and  considering  the  exceedingly  limited 


CONCI-RNINC.  THK  WATKRS  OF  THE  STATK. 

amount  of  water  applied  to  domestic  purposes  and  to 
the  operation  of  machinery,  either  stationary  or  mov- 
able, it  has  seemed  to  us  that  the  provisions  of  the  Con- 
stitution awarding  this  preference  might  be  repealed 
without  injury  to  any  interest,  and  to  the  avoidance  of 
much  abuse.  We  have  therefore  reported  separately 
from  the  rest  of  the  work,  a  bill  for  amendment  of  the 
Constitution  in  this  respect,  which  is  also  herewith 
respectfully  submitted. 

But  to  obviate  as  far  as  practicable  the  inconveniences 
and  abuses  resulting  from  the  Constitutional  preference 
in  favor  of  domestic  use,  we  have  provided: 

i.  That  the  area  about  the  house  within  which 
water  may  be  supplied  to  the  sustaining  of  the  trees, 
flowers  and  shrubbery  shall  not  exceed  one-half  acre. 
If  the  application  of  water  to  this  purpose  is  to  be 
deemed  a  domestic  use,  this  limitation  of  area  seems  to 
be  a  reasonable  one,  and  to  some  of  the  Commission  it 
appears  equally  reasonable  that  such  application  of  water 
ought  to  be  classified  as  a  domestic  use.  To  some  of  us 
it  seems  that  whatever  pertains  to  the  house  and  tends 
to  add  to  its  attractiveness  and  to  promote  the  comfort 
of  its  occupants  in  reference  to  their  occupancy  of  the 
house,  ought  to  be  regarded  as  a  use  pertaining  to  the 
house;  that  is  a  domestic  use.  The  trees  which  shade 
it,  the  grass  plat  which  surrounds  it  and  the  vine  which 
adorns  it  are  as  necessary  to  the  comfort  of  the  family 
as  the  windows  which  afford  light,  or  the  chimney 
which  carries  away  the  smoke  of  its  fires;  and  the  pro- 
priety of  this  classification  is  sustained  by  the  consider- 
ation that  if  the  use  of  water  for  these  purposes  be 
denied,  if  all  irrigation  about  the  house  be  prohibited, 
if  the  trees,  the  grass  and  the  shrubbery  die,  the  attract- 
iveness of  our  towns  and  cities  which  afford  a  market  to 
the  products  of  the  farm  and  add  to  the  value  of  the 
farms  in  a  degree  beyond  estimation,  will  be  destroyed. 
To  one  of  the  Commission  it  appears  to  be  a  dangerous 


6  REPORT   OF  THE   COMMISSION 

perversion  of  language  to  classify  as  a  domestic  use  the 
irrigation  of  lands  to  any  extent,  or  in  any  place  what- 
soever. 

2.  To  prevent'  the  abuse  of  the  preference  to  domes- 
tic use,  we  have  provided  that  the  procuring  of  water 
under  pretense  of  requiring  the  same  for  domestic  use 
and  afterwards  applying  the  same  to  other  use  shall  be 
deemed  a  misdemeanor  punishable  by  fine,  each  day  of 
the  improper  application  to  be  a  separate  offense. 

3.  That  water  shall  not  be  suffered  to  flow  in  open 
ditches  for  domestic  use  when  resulting  in  unreasonable 
and  disproportionate  waste  from  seepage  or  evaporation. 
(Art.  I,  Sec.  6.) 

4.  We  have  also  provided  remedies  by  which  any 
consumer  of  water  may  bring  in  question  the  action  of 
any  town  or  city  in  the  diversion  or  storage  of  water  and 
prevent  excessive  use,  storage  or  waste. 

II. 

The  legislation  of  1879  and  1881,  providing  for  the 
adjudication  of  priorities  of  right,  has  been  found  to  be 
defective  in  three  particulars: 

1.  The  adjudication  in  each  Water  District  related 
solely  to   the  rights  of  the  appropriators   within   that 
Water  District;   the  inhabitants  of  the  other  Districts 
were  neither  required,  nor  permitted  to,   nor,  so  far  as 
we  are  advised,  ever  did,  attend  or  participate. 

2.  No  provision  was  made  for  the  measurement  and 
rating  of  the  ditches  and  other  works  to  which  priorities 
were  adjudged. 

3.  No  person  was  appointed  to  represent  the  inter- 
ests of  the  public. 

It  resulted  that  the  amount  of  water  to  which  the 
several  proprietors  of  the  works  of  diversion  were 
entitled,  was  ascertained  and  determined  in  these  decrees 


CONCERNING  THE  WATERS  OF  THE  STATI-.     7 

by  the  interested  conjecture  of  those  proprietors;  that 
almost  invariably  the  amount  awarded  largely  exceeded, 
sometimes  three-fold,  the  carrying  capacity  of  the  ditch, 
and  that  the  whole  volume  of  the  stream  was  absolutely 
adjudged  to  the  junior  appropriators  upon  the  upper 
parts  of  the  stream  in  proceedings  to  which  the  senior 
appropriators  in  the  lower  parts  of  the  stream  were  not 
parties,  where  they  had  neither  right  nor  opportunity  to 
be  heard.  The  decrees,  therefore,  instead  of  affording, 
as  was  intended,  a  just,  true  and  absolute  measure  of  the 
rights  of  all  appropriators  for  irrigation,  are  in  fact 
false  and  misleading  even  as  to  those  who  participated 
in  the  inquiry  upon  which  they  are  founded,  and  abso- 
lutely void  as  to  all  others.  In  one  of  the  Districts,  as 
we  are  informed,  the  decree  is  so  void  of  certainty,  that 
the  Water  Commissioner  in  distributing  the  water  among 
the  appropriators  is  guided  solely  by  his  own  knowledge 
in  respect  to  the  amount  to  which  they  are  severally 
entitled. 

It  has  seemed  to  the  Commission  highly  desirable  to 
terminate  the  confusion  and  uncertainty  in  which  the 
rights  of  appropriators  are  thus  involved.  The  present 
condition  is,  in  some  of  the  Districts,  not  without  peril 
to  the  junior  appropriators;  for  although  it  appears  to 
the  Commission  very  plain  that  the  failure  of  those 
accorded  priority  in  the  decrees  heretofore  rendered,  to 
use  and  avail  themselves  of  the  excessive  amount  men- 
tioned in  the  decree  as  their  right,  amounts  in  law  to  an 
abandonment,  nevertheless  it  is  true  that  by  an  enlarge- 
ment of  the  ditches  of  earlier  priority  to  which  the 
excessive  amounts  have  been  decreed,  color  of  right 
may  be  asserted  to  carry  and  distribute  the  increased 
amount,  and  the  opportunity  thus  afforded  is  liable  to 
result  in  litigation  injurious  not  only  to  the  individual 
but  to  the  community. 

To  remedy  these  abuses  and  obviate  these  dangers 
we  have  attempted  to  provide  for  a  new  adjudication  in 


8  REPORT   OF   THE   COMMISSION 

each  Water  Division,  in  which  the  several  priorities 
shall  be  recognized  and  established,  according  to  date  of 
appropriation,  without  reference  to  location  in  the  divis- 
ion; and  to  the  proceedings  for  which  all  inhabitants  of 
the  division  and  other  parties  in  interest  whomsoever 
shall  be  parties.  To  prevent  the  uncertainty  which 
attended  the  former  decrees  we  have  provided  for  a 
measurement  and  rating  of  all  ditches  and  works  of 
diversion  or  storage,  prior  to  adjudication,  so  that  the 
capacity  thereof  may  be  accurately  ascertained.  We 
have  also  provided  for  the  appointment  of  counsel  to 
represent  the  public,  and  to  perform  the  duty  which  the 
former  legislation  devolved  upon  the  whole  community, 
and  which  the  whole  community  neglected. 

Also  for  an  accurate  survey  of  each  ditch  and  reser- 
voir and  the  preparation  of  maps  thereof,  which  having 
reference  to  the  provision  of  the  law  that  restricts  the 
rights  of  the  appropriators  and  consumers  of  water  to 
their  actual  needs,  seems  almost  indispensable  to  the 
intelligent  distribution  of  the  waters  of  the  State.  In 
order  to  prevent  extortion  in  charges  for  the  ratings  and 
surveys,  or  the  suggestion  of  official  favoritism,  we  have 
provided  that  the  State  Engineer  shall  appoint  all  com- 
petent persons  who  may  apply  for  the  position  Deputy 
Irrigation  Engineers,  with  authority  to  make  and  certify 
the  surveys  and  measurements  and  ratings  required. 
These  provisions  coincide  in  the  main  with  those  con- 
tained in  the  acts  of  Congress  for  the  mineral  surveys; 
and  it  is  believed  that  they  will  be  found  to  operate  in 
an  equally  satisfactory  manner.  If  in  the  first  instance 
the  expense  of  the  measurement  and  rating  and  survey 
should  appear  burdensome,  the  compensating  benefit  in 
the  certainty  of  right  so  obtained  will  more  than 
equalize  it. 

To  prevent  an  unjust  engrossment  of  the  excessive 
amount  decreed  in  the  former  proceedings,  we  have  pro- 
vided that  the  ditches  mentioned  in  the  former  decrees 


CONCKKNINC,    Till-     \V.\TKKS    <>F    THF.    STATE.  '•> 

shall  not  be  enlarged  until  rated  and  measured,  and 
until  renunciation  by  deed  from  the  proprietors,  duly 
recorded,  of  all  excess  in  amount  over  that  fixed  by  the 
rating. 

III. 

As  the  law  stands  at  this  time,  no  record  exists  of  the 
rights  of  any  consumer  of  water.  There  is  no  public 
office  to  which  any  person  maldng  inquiry  can  resort  for 
authentic  information  as  to  what  amount  of  water  any 
person  is  entitled  to  for  the  irrigation  of  his  lands,  or 
for  the  operation  of  any  mine,  mill,  manufactory  or 
other  works.  To  remedy  this,  we  have  provided  in  the 
ninth  article  that  by  the  first  day  of  July  next  the  pro- 
prietors of  every  ditch,  conduit  or  reservoir  supplying 
water  for  individual  consumption,  shall  make  and  record 
in  the  office  of  the  recorder  of  each  county  wherein  the 
ditch  may  be  situated,  or  wherein  any  part  of  the  waters 
are  used,  a  certificate  setting  forth  the  name  of  each 
person  entitled  to  water,  the  date  from  which  such  per- 
son or  his  predecessors  in  interest  began  to  use  and  enjoy 
the  water,  and  the  lands  irrigated  thereby  or  the  other 
place  where  the  same  were  used.  Provision  is  also 
made  for  the  falsification  of  this  certificate  by  any  per- 
son claiming  to  be  entitled  to  water  who  is  not  therein 
mentioned,  or  who  claims  to  be  entitled  to  a  greater 
amount  of  water  than  mentioned  in  the  certificate,  and 
for  establishing  the  rights  of  the  consumer  where  the 
proprietors  of  the  diverting  works  fail  to  comply  with 
the  statute.  We  have  also  suggested  provisions  which 
declare,  as  we  suppose  to  be  the  law  now,  that  water 
used  for  the  irrigation  of  lands  or  for  the  operation  of 
works,  or  used  with  and  necessary  to  the  enjoyment  of 
lands  for  any  other  purpose,  shall  be  deemed  appurte- 
nant thereto  and  pass  by  conveyance  of  the  lands,  unless 
expressly  excepted  or  reserved;  that  any  person  entitled 
to  the  use  of  water,  changing  the  place  or  manner  of  its 
use,  shall  certify  and  put  of  record,  evidence  of  the 


10  REPORT  OF  THE  COMMISSION 

change.  It  is  believed  that  these  provisions,  if  adopted, 
may,  when  time  sufficient  to  give  them  full  effect  has 
elapsed,  afford  ample  record  evidence  of  the  rights  of 
all  individual  consumers. 

IV. 

It  has  been  brought  to  the  attention  of  the  Commis- 
sion that  in  some  instances  the  proprietors  of  works  of 
diversion  have,  perhaps  owing  to  the  uncertainties  as  to 
the  amount  of  water  to  which  they  were  entitled  by  the 
former  decrees,  and  perhaps  owing  to  other  causes, 
granted  to  individual  consumers  the  right  to  the  Use  of 
water  in  excess  of  the  aggregate  of  the  amount  of  water 
which  the  ditch  customarily  carries.  To  remedy  this 
abuse  we  have  suggested  provisions  that  any  person 
claiming  to  be  entitled  to  the  use  of  water  may  implead 
the  proprietors  of  the  works  from  which  water  is  taken, 
and  all  other  consumers,  and  cause  the  total  amount  of 
water  actually  diverted  and  carried  in  the  ditch  and 
applied  to  beneficial  uses  to  the  amount  reasonably  suffi- 
cient and  efficient  for  the  uses  to  which  it  is  applied,  to 
be  ascertained,  and  that  those  first  using  or  enjoying  the 
waters,  to  this  amount,  shall  as  among  themselves  be 
adjudged  of  equal  right  and  priority;  that  all  grants  of 
the  right  to  use  or  take  water  subsequent  to  this  shall 
as  against  them  be  void;  and  that  as  to  the  grantees 
therein,  such  subsequent  grants  shall  have  effect  as  of 
the  date  when  the  water  was  actually  applied  to  benefi- 
cial uses.  It  is  believed  that  these  provisions  will  have 
the  effect  to  terminate  many  controversies  and  to  estab- 
lish the  distribution  of  the  water  upon  a  more  equitable 
and  certain  basis. 

V. 

The  act  of  February  19,  1879,  provides  that  no  res- 
ervoir with  embankments  exceeding  ten  feet  in  height, 
shall  be  made  without  first  submitting  the  plans  thereof 
to  the  County  Commissioners  for  their  approval. 


CONCI-RNINC,    Tin-.    \VAT1-RS    OF    TIIIC    STATE,          11 

No  penalty  for  the  violation  of  the  act  is  provided. 
iderin^  the  immense  number  of  works  of  this  char- 
acter heretofore  constructed,  and  now  in  progress,  and 
which  will  probably  hereafter  be  constructed,  and  the 
great  danger  to  life  and  property  involved  in  the  reck- 
less and  insufficient  construction  of  such  works,  we 
have  thought  this  provision  insufficient  to  the  occasion, 
and  have  suggested  provisions  requiring  that  before  the 
construction  of  any  such  works,  or  any  such  embank- 
ment, the  approval  of  the  State  Engineer  should  be  ob- 
tained after  inspection  of  the  plan  of  the  work,  and,  if 
necessary,  official  examination  of  the  proposed  site, 
and  the  character  of  the  soil  upon  which  the  work  is  to 
be  founded.  We  have  suggested  the  enforcement  of 
these  provisions  by  the  imposition  of  stringent  penalties 
and  by  provision  for  the  abatement  of  the  works  at  the 
cost  of  the  offending  party. 

VI. 

It  is  the  opinion  of  many  intelligent  persons  that  by 
the  alternation  of  the  water  to  which  many  appropri- 
ators  or  consumers  are  entitled,  so  that  upon  one  day, 
or  several  days,  the  whole  thereof  may  come  to  the  use 
of  some  of  such  appro priators  or  consumers,  and  on 
other  days  to  others,  the  water  can  be  made  much  more 
efficient  for  the  irrigation  of  lands,  and  perhaps  for 
other  uses.  This  application  of  water  is  termed  among 
practical  men  the  "rotation  of  water."  We  have  sug- 
gested provisions  which  will  allow  experiment  in  this 
direction  by  agreements  between  all  or  any  part  of  the 
consumers  from  one  ditch  or  between  different  ditches 
(with  the  consent  of  the  consumers  therefrom)  which 
shall  be  for  a  limited  time  only,  which  shall  not  impair 
or  in  any  manner  disparage  the  rights  of  the  parties 
thereto,  and  may  be  renewed  or  made  perpetual  as 
experience  may  show  to  be  wise. 


12  REPORT  OF   THE   COMMISSION 

VII. 

The  ease  and  facility  with  which  water  to  which  one 
person  is  entitled  may  be  diverted  to  the  premises  of 
another,  and  the  difficulty  of  detecting  the  offender  has 
seemed  to  the  Commission  to  render  it  wise  to  provide 
that  the  fact  that  upon  two  occasions  within  the  same 
period  of  thirty  days,  water  to  which  one  consumer  is 
entitled  has  been  found  flowing  into  the  fields  or  works 
of  another  consumer,  should  be  prima  facie  evidence  of  a 
guilty  participation  by  the  person  profiting  thereby  on 
all  subsequent  occasions  of  such  improper  diversion. 
(Art.  XIII,  Sec.  3.) 

VIII. 

It  has  occurred  to  the  Commission  that  by  the  incor- 
poration of  the  Water  Districts  and  Water  Divisions 
with  an  organization  similar  in  some-  respects  to  the 
school  districts,  and  with  limited  powers,  the  supervision 
of  the  distribution  and  use  of  water,  the  prevention  of 
excessive  use  and  waste  might  be  much  more  efficiently 
conducted  than  under  the  present  system.  We  have 
therefore  framed  a  chapter  relating  to  this  subject  and  by 
which  on  petition  of  a  limited  number  of  the  electors  of 
any  Water  Division  or  Water  District,  an  election  may 
be  held  to  ascertain  the  opinion  of  all.  It  has  also 
occurred  to  the  Commission  that  in  case  the  Water 
Divisions  should  be  incorporated  it  might  be  wise  to  con- 
fer power  upon  the  directors  thereof  to  agree  with  the 
prior  appropriators  in  the  lower  parts  of  the  Divisions 
and  at  a  distance  from  the  sources  of  supply,  for  the  sur- 
render of  their  priority,  upon  compensation  made,  and 
the  subsequent  distribution  of  the  water  in  the  discre- 
tion of  the  Board  of  Directors  in  the  upper  portions  of 
the  Division  where  the  loss  from  seepage  and  evapora- 
tion will  be  least,  and  so  that  the  water  in  descending 
the  valley  will  everywhere  be  put  to  the  service  of  man. 
Provision  is  also  made  that  if  this  system  should  prove 


CONCERNING  THE   WATERS  OF   THE   STATJ-.          1  :'. 

upon   experiment  unsatisfactory,  the   Districts  may  of 
their  own  motion  become  dissolved. 

IX. 

The  laws  now  in  force  do  not  allow  any  variation  in 
the  maximum  rates  prescribed  between  classes  of  con- 
sumers. It  has  seemed  to  the  Commission  manifestly 
just  that  an  increase  in  the  rate  should  be  allowed  for 
an  increase  in  the  distance  of  carnage.  Many  of  the 
ditches  in  the  various  Water  Districts  are  many  miles  in 
length.  For  the  service  of  those  at  the  lower  extremity 
the  whole  length  of  the  ditch  must  be  maintained,  and 
justice  seems  to  require  that  the  carrier  should  be  com- 
pensated therefor,  and  the  burden  should  be  thrown 
upon  the  persons  receiving  the  service  and  not  upon 
others.  It  seems  reasonable  also  that  those  who  con- 
sume water  during  the  whole  year,  as  for  domestic  uses, 
or  for  the  operation  of  machinery,  should  pay  a  greater 
maximum  rate  than  the  farmer  whose  use  ends  with  the 
season  of  irrigation,  and  that  those  who  use  water  only 
occasionally  and  for  short  periods  should  pay  a  greater 
rate  than  those  who  are  consuming  during  the  whole 
year  or  the  whole  irrigating  season. 

There  are  also  instances  where  the  proprietors  of  the 
same  works  are  entitled  to  water  under  distinct  appro- 
priations, as  by  original  construction  and  by  subsequent 
enlargement,  and  where  those  enjoying  the  water  taken 
by  the  enlargement  are  frequently  subordinated  to  prior 
appropriators  by  other  ditches,  and  receive  no  water,  or 
but  a  scant  supply,  at  times  when  those  enjoying  the 
water  taken  by  original  construction  have  an  abundance. 

It  has  also  seemed  to  the  Commission  that  perhaps  in 
some  instances  a  variation  in  the  maximum  rate  might 
reasonably  be  made  where  the  same  proprietor  operates 
both  reservoirs  storing  water  and  ditches  diverting  water 
directly  from  the  stream. 


14  REPORT  OF  THE  COMMISSION 

We  have  framed  provisions  authorizing  a  variation 
in  the  maximum  rate  between  the  different  classes  of 
consumers  in  all  those  cases. 

X. 

As  the  law  stands  at  this  time  the  duty  and  authority 
to  fix  the  maximum  rate  to  be  charged  by  the  carrier  is 
devolved  solely  upon  the  County  Commissioners  in  the 
county  in  which  the  water  is  used.  In  many  cases  it  is 
believed  the  Commissioners  have  been  directly  inter- 
ested in  the  question,  sometimes  as  proprietors  of  the 
works,  sometimes  as  consumers  therefrom.  Until  this 
time  also  their  determinations  have  been  absolute,  no 
appeal  or  other  method  of  review  of  their  errors  being 
provided. 

It  has  seemed  to  the  Commission  that  an  attempt, 
whether  by  fundamental  or  ordinary  legislation  to  con- 
fer upon  the  proprietor  of  the  works  on  the  one  hand, 
the  absolute  power  of  determining  what  he  shall  receive; 
or  upon  the  consumer  on  the  other,  the  absolute  right 
to  say  what  he  shall  pay  for  the  service,  is  so  manifestly 
unjust  as  to  come  within  the  denunciation  of  the  Fifth 
Article  of  the  amendments  of  the  Constitution  of  the 
United  States  prohibiting  the  deprivation  of  life,  liberty 
or  property  without  due  process  of  law.  We  have  there- 
fore suggested  provisions  allowing  a  change  of  the 
venue  where  any  member  of  the  Board  of  County  Com- 
missioners is  in  any  case  interested  in  the  question  of 
the  rate  to  be  fixed  by  the  carrier,  and  for  allowing  an 
appeal  to  the  Supreme  Court. 

We  have  prefixed  to  the  work  a  table  showing  the 
former  acts  and  the  places  where  the  same  subjects  are 
considered  and  have  added  an  index  to  facilitate  refer- 
ence. 

One  member  of  the  Commission  is  of  the  opinion 
that  regulations,  which  to  the  others  seem  a  departure 


CONCERNING   THK   WATl,!  il  Lo 

from  the  lines  heretofore  laid  out,  and  which  treat  the 
application  of  water  to  beneficial  uses  as  an  appropria- 
tion of  water  and  the  diversion,  conveyance  or  storage 
of  water  as  a  carriage  of  water  and  provide  that  no 
right  of  appropriation  or  carriage  or  water  confers  upon 
the  carrier  or  appropriator  thereof  any  right  of  sale  or 
lease  of  such  water,  or  right  to  make  any  charge  there- 
for, save  that  for  the  carriage  of  such  water,  may  be 
wisely  enacted,  and  a  separate  report  will  be  presented 
embracing  these  views. 

We  are  gratified  to  report  that  of  the  appropriation 
of  $4,000  made  for  the  expenses  of  the  Commission,  we 
have  consumed  less  than  eight  hundred  dollars. 

Very  respectfully, 

Your  obedient  servants, 

J.    S.    GREENE, 
T.    C.    HENRY, 
E.    T.  WELLS. 


1<>  REPORT  OF  THE  COMMISSION 


TABLE 

SHOWING    WHERE   THE  SEVERAL   FORMER    ACTS    ARE 
REITERATED,  AMENDED  OR   REPEALED. 


FORMER   LEGISLATION. 


WHERE  TO  BE  FOUND   IN  THE  BILL 
REPORTED   BY  THE   COMMISSION. 


Rev.  Stat.  1868,  Chapter  45,  Sect,  i   .   .   .   .      Not  re-enacted  because  contained  in  the 

Constitution:  Sec.  5,  Art.  XVI. 

Sec.    2 Art.  IV,  Sec.  i. 

Sec.    3 I  Art.  IV,  Sec.  2. 

Sec.    4  .  .  I  Not  re-enacted. 


Sec.    5  . 
Sec.    6  . 


Art.  IV,  Sec.  i. 
Art.  IV,  Sec.  i. 


Sec.    7 |  Art.  V,  Sec.  15. 

Sec.    8 Art.  II,  Sec.  i. 

Sec.    9 •       • j  Not  re-enacted. 

Sec.  10 Art.  V,  Sec.  13. 

Sec.  ii .  Art.  V,  Sec.  14. 

Sec.  12 I  Somewhat  similar  provision,  Art.  V, 

Sec.  14. 

Acts  of  1870,  page  81,  Sec.  i Art.  II,  Sec.  5. 

Acts  of  1872,  approved  Feb.  5 ;  Sec.  i,  con-  I  Not  re-enacted, 
cerning  irrigation  in  El  Paso  county; 
Acts  1872,  p.  140 

An    act   to  provide  for  the  drainage  of  j  Repealed;  acts,  1872,  p.  155. 
mines,  approved  Feb.  n,  1870.     Acts, 
1870,  p.  82 | 

Act  approved  Feb.  Q,  1872;  page  144;  sec.  i.  Art.  IV,  Sec.  8,  provides  for  the  con- 
struction of  a  tail-race  on  the  re- 
quirement of  the  State  Engineer. 

Provision  against  waste.   Art.  II,  Sec.  3. 
Act  of  Feb.  u,  1876.    Acts,  1876,  p.  78.  .   .    j  Art.  II,  Sec.  3." 

(Prohibiting  the  allowance  of  water  to  run  | 
in  the  summer  season  in  any  greater 
quantity  than    absolutely    necessary 
tor  irrigating  the  lands  of  the  pro-  j 
prietor  and  for  domestic  and    stock 
purposes)         \ 

Sec.  3,  penalty  of  $100.00 Art.  II,  Sec.  3. 

Act  Feb.  io,  1876,  p.  79.    (Prohibits  irriga-  j  Not  repealed  nor  reiterated, 
tion  of  meadow  and  hay  land  in  Huer- 
fano  county  between  2oth  June   and 
3ist  August)  

Act  Feb.  19,  1879,  (to  regulate  the  use  of 
water  for  irrigation,  and  for  settling 
the  priority  of  right.)  Acts,  1879,  p.  94. 


CONCKKNING    THK    \VATKRS    <>!•' 


17 


TABLE— CONTINUED. 


I'ORMKK     I  1  <.lr>l    V  IK 


WHERE   TO   HE   FOUND     IN     111 
REPORTED    BY  THE  COMMISSION. 


Sec.  i,  provides  for  fixing  the  rates  to  be     Held  unconstitutional  by  the  Supreme 
charged  lor  water  for  irrigation  by  the  Court. 

County  Commissioners  ot  the  county 
in  which  the  whole  or  upper  part  of 
the-  ditch  .shall  lie  .... 

Sec.  2  authorixes  subpoenas  for  witn 

examination,  etc      .       

Sec.  3  provides  that  any  person  having 
purchased  water  for  the  irrigation  or 
his  lands  and  not  having  ceased  to  do 
so  with  the  intent  to  secure  water 
from  some  other  source  of  supply, 
shall  have  right  to  continue  purchas- 
ing ...... 

Sec.  4  provides  for  apportionment  of  water 
among  consumers  where  the  ditch  is 
not  entitled  to  a  full  supply 

Sec.  5  constitutes  Water  Districts     .... 


Art.  VIII. 


Art,  i.\.  Sec.  10. 


Art.  VIII,  Sec.  2; 


to  Sec.  15 


Sec.  15    

Sec.  16.  Water  Commissioners  to  be  ap- 
pointed on  recommendation  of  the 
Board  of  County  Commissioners  .  . 

Sec.  17 

Sec.  18.  . 


Sec.  19  confers  jurisdiction  to  settle  the 
priorities  of  right  in  each  Water  Dis- 
trict upon  the  District  Court  of  that 
county  in  which  the  first  regular  term 
is  held,  etc 

o  requires  appointment  of  referee  to 
hear  proofs;  requires  oath       

Sec.  21.  Notices  in  each  \Vater  District 
by  publication  of  the  time  for  com- 
mencing the  taking  ot  depositions  .  . 

Number  of  places  to  be  such  as  the  referee 
may  select 

Sec.  17 

Sec.  21.  All  persons  claiming  any  interest 
shall  attend  at  some  one  of  the  times 
and  places  fixed  in  the  notice,  and 
offer  proofs 

Sec.  21.  Power  to  administer  oaths  and 
issue  subpoenas  for  witnesses  and 
subpoenas  duces  tfcum,  which  shall  be 
served  by  any  sheriff",  deputy  or  con- 
stable, or  by  any  party  .  .  .  " 

Permit  all  witnesses  to  be  examined  by 
the  party  or  counsel 


Art.  VII. 

Art.  VII,  Sec,  81. 

Art.  VI,  Sec.  26.  Recommendation  of  the 
State  Engineer. 

Art.  VIII,  Sec.  29. 

Art.  VI,  Sec.  36,  except  words  "by  order 
given  to  any  assistant,  sheriff  or 
constable  of  the  county  in  which  the 
head  of  such  ditch  is  situate." 

Art.  VIII,  Sec.  i,  confers  jurisdiction  on 
one  District  Court  in  each  Water 
Division. 


Art.  VIII,  Sec.  16. 


Sec.  24.     Notices  required   to   be  given 
by  clerk. 


To  be  fixed  by  the  Court. 

Art.  VIII.,  Sec.  21. 
Art.  VIII..  Sec.  15. 


Art.  VIII.,  Sec.  26. 


Art.  VIII.,  Sec.  15. 


IS 


REPORT  OF  THE   COMMISSION 


TABLE— CONTINUED. 


FORMER   LEGISLATION. 


WHERE    TO    BE     FOUND    IN    THE   BILL 
REPORTED   BY  THE  COMMISSION. 


Reduce  testimony  to  writing.  Note  all 
objections.  Certify  all  books  and 
papers;  or  make  copies  if  not  under 
the  control  of  the  party  desiring  their 
testimony 


Sec.  22. 


Sec.  23.  .. 
Sec.  24.  .. 
Sec.  25.  .. 
Sec.  26.  .  . 
Sec.  27.  .. 
Sec.  27.  . 


Sec.  28.  Persons  refusing  to  appear  be- 
fore the  Referee  and  make  proof  of 
their  claims  are  forever  barred,  unless 
upon  cause  shown  before  the  entry  of 
the  final  decree  they  shall  obtain  a 
rule.  All  others  who  have  made  proofs 
to  present  their  evidence,  etc 


Sec.  20.  Requires  the  Governor  upon  cre- 
ating a  Water  District  to  notifiy  the 
Judge  of  the  District  Court,  and  re- 
quires such  Judge  to  appoint  a  Referee. 

Sec.  30.  Court  to  examine  testimony  with- 
out unnecessary  delay  and  enter  a 
decree  


Court  to  order  that  each  party  have  a  cer- 
tificate from  the  Clerk  showing  the 
date  and  amount  of  his  appropriation, 
which  certificate  the  claimant  shall 
exhibit  to  the  Water  Commissioner 
The  Water  Commissioner  to  keep  a 
book  and  enter  a  brief  statement  of 
all  such  certificates 


Certificate  may  be  recorded  in  the  county 
records  

Sec.  32    

Sec.  33.    Power  to  allow  re-argument    .   . 
Sec.  34 


Art.  VIII..  Sec.  26. 


Art.  VIII.,  Sees.  55  and  56. 
Art.  VIII  ,  Sec.  37. 
Art.'viII.,  Sec.  26. 
Art.  VIII.,  Sec.  31. 
Art.  VIII.,  Sec.  32. 
Art.  VIII.,  Sec.  25. 

Art.  VIII.,  Sec.  27.  No  provision  for  an 
abstract  of  the  testimony  by  the 
referee. 

Not  re-enacted.  Art.  VIII,  Sec.  33,  pro- 
hibits a  decree  save  according  to 
testimony;  Art.  VIII,  Sec.  36*  allows 
claimants  who  have  failed  to  pres- 
ent their  proofs  through  excusable 
neglect,  to  be  heard  upon  a  showing; 
Art.  VIII,  Sec.  48,  allows  suits  by 
any  person  for  establishing  his  right. 
No  injunction  to  be  allowed  in  any 
such  suit.  Art.  VIII,  Sec.  49,  after 
the  lapse  of  four  years  from  the 
entry  of  the  final  decree,  persons 
who  have  not  entered  any  suit  are 
forever  barred  from  setting  up  any 
claim  against  the  decree. 

Not  re-enacted. 


Art.  VIII,  Sec.  33,  allows  subpoenas  to 
to  be  taken  by  any  party  within 
thirty  days  from  the  filiifg  of  the 
report — allows  a  further  reference  or 
the  Court  to  hear  testimony  in  open 
Court.  Requires  the  Court  to  enter 
its  decree. 

Not  re-enacted.  Art.  VIII,  Sec.  15,  Clerk 
of  the  District  Court  to  certify  copies 
of  the  decree  to  the  Stste  Engineer. 
Art.  VI,  Sec.  34,  State  Engineer  to 
prepare  a  register  of  the  priorities 
for  the  Water  Division,  and  transmit 
copy  to  the  Superintendent  of  Irri- 
gation, and  a  like  table  for  each 
Water  District  to  the  Water  Com- 
missioners 

Not  re-enacted.  Fees  of  referee  pre- 
scribed. Art.  VIII,  Sec.  51. 

Art.  VIII,  Sec.  38. 
Art.  VIII,  Sec.  39. 
Art.  VIII,  Sees.  40  and  47. 


CONCERNING    Til  1C    WATERS  OF  THE   STATIC. 


TABLE     ( 


I'nK  M  \   i  H'N. 


•-.     Provision    authorizing    the  eon 

,-tioii  of  reservoirs  and  ihr  storage 
of  unappropriated  u;iU -:s. 

Authorising  the  condemnation  of  land,  etc 

.  oirs  or  cnibankments  exceeding  ten 
feetjiotto  be  constructed  withuii i  ap- 
proval  of  the  County  Commis.sioneis  . 


N  Tin'.  HIM. 


Sec.  4<..     Makt-s    the  owner  of  the  reser- 
liable     for     all     damages    from 
overflow      or       breakage, 
whether  negligent  or  not 


Sec  42.  Water  Commissioners  not  to  be- 
gin work  until  called  on  by  two  or 
more  proprietors  of  ditches  in  writ- 
ing   


Sec.  43    ...     • 

Sec.  44        

Act  of  Feb.  23,  iS8i,  Sec. 

Sec.  2 

Sec.  3 


Sec.  4.  Provision  requiring  petition  to 
the  District  Court  praying  the  app  .int- 
ment  of  a  referee,  etc.,  and  the  hear- 
ing of  testimony  ... 


Not  re-enacted. 
Art.  VI,  Sec.  26. 
Art.  IV,  Sec.  7. 
Ait.  II,  Sec.  7. 


Art.  Ill,  Sec. 


Art.  IV,  Sec.  i. 


Ait.  Ill,  Sec.  5. 


Art.   IV,  Sec.  is,  imposes  liability  only 
in    case    of    negligence    or    willful 


gligence 
violation  of  the  law. 


Art.  V,  Sec.  27. 

Art.  V,  Sec.  31.  Water  Commissioners 
not  to  assume  their  duties  until  called 
thereunto  by  the  State  Engineer 
Superin  tendent  of  Irrigation  or  tw  . 
or  more  Superintendents  of  Ditcheso 
Canals  or  Reservoirs.  , 

Art.  VIII,  Sec.  52. 

Art.  V,  Sec.  32.     Art.  XIII,  Sec.  i. 

Art.  VIII,  Sec.  13. 

Not  re-enacted. 

Not  re  enacted. 

• 

Art.  VIII,  Sees.  14,  17,  19  and  26. 


Direction  for  a  decree    establishing    the  j  Art.  VIII,  Sec,  34. 
several  priorities  of  right,  etc    .   .    . 

Certificate  from   the  Clerk  showing  the  •  Not  re-enacted, 
date  aud  amount  of  appropriation  in 

favor  of  any  ditch,  etc 

" 

Sec.  5.    The  holder  of  such  certificate  to    Not  r«e-n acted;  otherwise  provided  for. 
exhibit  the  same  to  the  Water  Com- 
missioner who  shall  enter  in  book, 
etc    . 


20 


REPORT   OF  THE   COMMISSION 


TABLE— CONTINUED. 


FORMER   LEGISLATION. 


Sec.  6.  Provides  for  a  notice  of  the  day 
appointed  by  the  Court  for  hearing; 
publication  of  such  notice  and  posting 
in  ten  public  places 


Sec.  7 

Sec.  8 

Sec.  9 


Sec.  10.  Provides  for  the  appointment  ot 
the  referee  in  case  the  Court  shall 
deem  it  impracticable  to  proceed  in 
open  Court  .  .  .  .^ 

Sec.  ii.  Directs  a  notice  to  be  given  by 
the  referee  of  the  times  and  places 
where  he  will  attend  to  hear  evidence 
and  the  publication  of  sueh  notice  .  . 

Sec.  12 

Sec.  13.  Provides  that  the  referee  shall 
attend  at  the  times  mentioned  in  the 
notice,  and  that  all  persons  interested 
in  person  or  by  counsel  may  attend,  etc. 


Sec.  14. 
Sec. 15. 
Sec.  16. 
Sec. 17. 
Sec.  18. 
Sec.  19. 


Sec.  20.  Requires  the  referee  to  make  an 
abstract  of  the  testimony  and  prepare 
a  draft  of  the  decree  . 

Sec.  21 

.  Sec.  22 .  . 


Sec.  23 

Sec.  24.      

Sec.  25 

Sec.  26.  . 


WHERE  TO   BE    FOUND   IN    THE   BILL 
REPORTED   BY   THE   COMMISSION. 


In  lien  of  these  provisions  Art.  VIII, 
Sec.  15,  directs  a  time  for  hearing 
the  petition  to  be  fixed  by  the  Court, 
and  citation  to  be  issued  to  the  Water 
Commissioner,  service  thereof  upon 
the  Superintendent  of  each  ditch 
which  shall  have  filed  the  statement 
of  claim  of  right.  Publication 
thereof  for  at  least  thirty  days  in 
each  Water  District.  And  Sec.  16  of 
the  same  Article  provides  that  every 
inhabitant  of  the  State  of  Colorado 
and  every  other  person  interested 
shall  be  deemed  party  to  the  peti- 
tion and  entitled  to  appear. 

Art.  VIII,  Sec.  46. 
Art.  VIII,  Sec.  15. 

Art.  VIII,  Sec.  34,  provides  for  the  en- 
try of  the  decree,  and  the  arrange- 
ment and  numbering  of  the  ap- 
propriations in  consecutive  order 
throughout  the  Water  Division. 

Art.  VIII,  Sec.  17. 


Art.  VIII,   Sec.    25.      Directs   notice   by 
the  Clerk  of  the  Court. 


Art.  VIII,  Sec.  46. 

Art.  VIII,  Sees.  16,  26,  28. 


Art.  VIII,  Sec.  27. 

Art.  VIII,  Sec.  38. 

Art.  VIII,  Sec.  27. 

Art.  VIII,  Sec.' 32. 

Art.  VIII,  Sec.  33. 

Art.  VIII,  Sees.  26,  27  and 

Not  re-enacted. 

Art.  VIII,  Sec.  34. 

Art.  V,  Sees.  35  and  36. 

Art.  VIII,  Sec.  34. 

Art.  VIII,  Sec.  39. 

Art.  VIII,  Sees.  36  and  37. 

Art.  VIII,  Sec.  40. 


CONCERNING    THK   \V  ATI-US   <>!•    THE  STATE.         'J  I 
TABLE — CONTINUED. 


vriON. 


WIIl.RB   TO   HK   FOUND   IN   THE   BILL 
RBPORTKD  BY  THE  COMMISSION. 


Sec.  27.  .  . 

Sec.  ,- 

:.  .  . 

.'.  .  . 

Sec.  33.  .  . 


Sec.  36    

Act  to  provide  for  the  extension  for  the 
right  of  way  for  ditches,  canals  and 
feeders  of  reservoirs  in  certain  cases, 
and  require  registration  of  all  such 
hereafter  may  or  be  enlarged.  Feb. 
ii,  1881  .  .  .  " 

Sec.  i.  Provision  authorizing  the  con- 
demnation of  lauds  for  extending  the 
head  of  any  ditch,  canal,  etc.,  up- 
wards ...  

The  right  of  priority  of  taking  water  from 
such  stream  from  such  ditch  to  re- 
main unaffected  by  reason  of  such 
extension  .  . 


Provided,  however,  that  no  such  extension 
shall  interfere  with  the  complete  use 
or  enjoyment  of  any  other  ditch,  canal 
or  feeder " 

Sec.  2.  Requiring  the  sworn  statement 
of  size,  capacity,  course,  etc.,  of 
ditches,  etc  

Sec.  3.  This  act  applicable  only  to  ditches 
for  irrigation 

Act  to  punish  breaking  or  disturbing 
gates  or  embankments  of  ditches,  etc. 
Approved  Feb.  12,  1881 


Sec.  i 


Sec.  2.  Justices  of  the  Peace  to  have 
jurisdiction 

Act  relating  to  irrigating  ditches  and 
manner  of  construction.  Approved 
Feb.  12,  1881  ...  

Sec.  i.  No  parcel  of  improved  land  to  be 
burdened  with  two  ditches  without 
the  consent  of  the  proprietor  .... 

Sec.  2.  Ditches  to  be  located  on  the  short- 
est feasible  route  . 


Art.  VIII,  Sec.  41. 

Art.  VIII,  Sec.  42. 

Art.  VIII,  Sec.  43. 

Art.  VIII,  Sec.  42. 

Art.  VIII,  Sec.  43- 

Art.  VIII,  Sees.  46  and  47. 

Art.  VIII,  Sec.  29. 

Art.  VIII,  Sec.  49. 

Art.  VIII,  Sec.  50. 

Art.  VIII.  Sec.  52. 


Art.  Ill,  Sees,  i,  8. 


Art.  Ill,  Sees,  i,  8. 


Art.  Ill,  Sees,  i,  S. 


Substitute  adopted  April  20,  1887. 
1887,  page  315. 


Not  re-enacted. 


Art.  XIII,  Sec.  i. 
Art.  XIV,  Sec.  i. 


Art.  Ill,  Sec.  4. 


Art.  Ill,  Sec.  2. 


22  REPORT  OF  THE   COMMISSION. 

TABLE — CONTINUED. 


FORMER    LEGISLATION. 


Sec.  3.  No  person  to  prevent  another 
from  enlarging  or  using  in  common 
with  him  the  ditch  before  constructed 

An  act  to  provide  for  head-gates  for  irri- 
gating ditches.  Approved  April  n, 


An  act  to  amend  "An  act  to  regulate  the 
use  of  water,  etc.,  approved  Feb.  19. 

1879."      ,  approved  April 

9,  1885 

Sec.  i .  Water  Commissioner  to  be  allowed 
$5,  to  keep  a  just  and  true  account  of 
the  time,  etc  .  ...  .  . 

An  act  to  repeal  Sec  5  of  an  act  to  pro- 
vide for  the  appointment  of  the  State 
Engineer,  etc.  Approved  April  i,  1885 

Sees.  1-27.    Establish  Water  Districts    .   . 

Sec.  28.  Testimony  taken  before  any 
former  referee  may  be  introduced  as 
evidence  for  the  purpose  of  adjudicat- 
ing priorities,  etc 


An  act  concerning  irrigating,  etc.  Ap- 
proved April  17,  1885 

Sec.  i  Provides  for  a  Commission  to 
make  tests  and  experiments  for  set- 
tling and  purifying  the  water  used  by 
stamp  mills  and  smelters 

An  act  to  regulate  the  mode  of  fixing  the 
rates  of  compensation  to  be  paid  for 
water  furnished,  etc.  Approved  April 
4,  1887 

An  act  providing  for  the  appointment  of 
superintendent  of  irrigation,  etc.  Ap- 
proved April  4,  1887 

Sec.  i.  Governor  to  appoint  a  superin- 
tendent of  irrigation  for  each  Water 
Division 

Term  of  office  to  be  two  years 

Governor  may  remove  in  his  discretion   . 

No  appointment  to  be  made,  except  on 
petition  of  the  Board  of  County  Com- 
missioners of  some  one  ot  the  coun- 
ties, etc 


Sec.  2  . 
Sec.  3  - 
Sec.  4  . 
Sec.  5  • 
Sec.  6  . 


WHERE  TO   BE   FOUND    IN   THE   BILL 
REPORTED   BY  THE   COMMISSION. 


Art.  Ill,  Sec.  4. 


Art.  IV,  Sec.  6. 


Art.  V,  Sec.  26. 


Art  VII. 

Art.  VIII,  Sec.  33.  Provides  that  such 
former  depositions  shall  not  be  used 
as  evidence  save  against  the  depon- 
ent or  the  person  in  whose  behalf  he 
was  examined. 


Not  re-enacted. 


Re-enacted  with  additions.    Art.  X. 


Art.  V,  Sec.  17. 

Art.  V,  Sec.  17. 
Art.  V,  Sec.  28. 
Not  re-enacted. 


Art.  V,  Sec.  20. 
Art.  V,  Sec.  21. 
Art.  V,  Sec.  22. 
Art.  V,  Sees.  24  and  25. 
Art.  V,  Sec.  18. 


MN(.    Till.    UATKKS     (  .1      THI-.    STATE. 


1C       CONTINI   hi.. 


wiir.KB  TO  BE  FOUND    I 
O&TBD   BY    i 


Art.  V,  Sec.  34. 


Art    V,  Sec.  34. 


Art.  V,  Sec.  21. 
Art.  V,  Sec.  21. 
Art.  V,  Sec.  37. 
Art.  V,  Sec.  37. 
Art.  V,  Sec.  38. 


Art.  V,  Sec.  42. 


Art.  V,  Sec.  39. 


Sec.  7.     Superintendent    of    In  Cation    to 
the  District 

Coin  t  .1  o>py  ol'eveiy  iln  i<-<   establish- 
ing  ]>ri"t  itu-s       ... 

Make  proper  register  of  priorities  for  the 
Division,  and  a  list  of  all  ditches,  etc., 
its  iiuinbtT  in  the  Division ,  tin-  num- 
ber of  cubic  feet  of  water  it  is  entitled 
to.  etc 

v   call    out   any    Water   Com- 
missioner    .    . 

May  perform   the  duties  of  Water  Corn- 

"missioner  .    .    . 

Sec.  9.  Water  Commissioners  to  report 
to  Superintendent  of  Irrigation.  .  .  . 

Amount  of  water  coming  into  the  Dis- 
trict, etc.  ...  

Superintendent  of  Irrigation  to  ascertain 
from  the  reports  what  ditches  are  not 
receiving  their  proper  supply  of  water 
and  order  the  ditch  junior  in  priority 
to  be  shut  down  .  

Reports,  of  Water  Commissioners  to  the 
Superintendent  of  Irrigation  to  be 
filed  and  be  kept  in  the  office  of  the 
State  Engineer 

Sec.  10.  Owner  of  ditch  not  receiving  the 
amount  of  water  to  which  it  is  entitled 
shall  report  to  the  Water  Commis- 
sioner.. .  .  ... 

Water  Commissioner  to  report  to  the 
Superintendent  of  Irrigation.  Super- 
intendent to  order  ditch  in  any  other 
wa  er  district  receiving  an  excess  to  be 
shut  down  ....  .... 

Proviso — nothing  in  this  act  construed  to 
interfere  with  the  priority  of  domestic 
use 

Sec.  ii.  Salary  of  Superintendent  of  Irri- 
gation to  be  paid  by  the  counties  of  his 
division 

Fees  of  the  Clerk  of  the  District  Court      . 

An  act  to  amend  section  42  of  chapter  57 
of  the  General  Statutes.  Appr  ved 
March  15,  1889 

The  Water  Commissioner  to  be  appointed 

to    each    Water    District   from 

among  the  persons  recommended  by 
the  Boards  of  County  Commissioners. 

To  give  bond  not  less  than  one  th^u«and 
dollars,  nor  more  than  five  thousand 
dollars;  amount  to  be  fixed  by  the 
County  Commissioners  .... 

With  not  less  than  three  sureties  approved    One  or  more  sureties  approved  by  the 
by  State  Engineer State  Engineer.     Art.  V,  Sec  29. 


Not  re-enacted. 


Art.  V,  Sec.  19. 


Art.  VIII,  Sec.  52. 


Art.  V,  Sec.  26. 


—    amount  to    be  specified  by  the 
State  Engineer.    Art.  V,  Sec.  29 


REPORT   OF  THE   COMMISSION 


TABLE — CONCLUDED. 


FORMER   LEGISLATION. 


WHERE    TO    BE    FOUND    IN    THE    BILL 
REPORTED   BY  THE  COMMISSION. 


to    hold    office    until   successor  is 

appointed 

Sec.  2.    Governor  to  fill  all  vacancies  .  .   . 

Governor  may  remove  any  Water  Com- 
missioner in  his  discretion 

Au  act  regulating  the  distribution  of 
water,  etc.  Approved  March  19,  1887  . 

Sec.  i.  Proprietor  of  every  ditch,  etc.,  for 
irrigation  to  keep  a  flow  of  water 
therein  sufficient  to  meet  the  require- 
ments of  all  persons  from  April  15  to 
Nov.  i  .  .  


Sec.  2 
Sec.  3 
Sec.  4 


Sec.  5.     Water  Commissioner,  etc.,  failing 
water  ac- 

>riorities  of  the  several 
guilty  of 
a  misdemeanor 


'..  5.  water  commissioner,  eu 
to  promptly  measure  out  •« 
cording  to  the  priorities  of  th 
ditches  in  his  Districts,  etc., 


Prosecution  of  any  act  declared  a  misde- 
meanor bv  this  act  may  be  had  before 
a  Justice  of  the  Peace 

Sec.  6.  Act  to  define,  prohibit  and  punish 
extortion.  Approved  April  4,  1889  .  . 


Sec.  2  . 


Sec.  3 
Sec.  4 


Sec.  6 

An  act  to  provide  for  the  protection  of 
water  rights,  etc.  Approved  April  4, 
1887 

An  act  to  amend  Sec.  2  of  the  "act  to  pro- 
vide for  the  extension  of  right-of-way 

for  ditches,  etc." 

Approved  April  20,  1887 

An  act  to  establish  and  define  priority  of 
appropriations  of  water  from  sources 
other  than  natural  springs.  Approved 
April  17,  1889 

Sec.  i.  Ditches  for  utilizing  seepage  or 
spring  waters  to  be  governed  by  the 
same  laws  relating  to  priority  as 
ditches  from  running  streams  .... 

Proprietor  of  lands  where  seepage  of 
spring  water  first  arises  to  have  the 
priority  of  fight  if  the  water  be  capa- 
able  of  being  used  on  his  lands  .  .  . 


Art.  V,  Sec.  26. 

Art.  V,  Sec.  28. 
Art.  V,  Sec.  28. 

Art.  V,  Sec   i. 
Art.  IX,  Sec  6. 


Art.  IX,  Sees.  6  and  7. 

Art.  V,  Sec.  44.    Art.  IX,  Sees  8  and  9. 

Art.  IX,  Sec.  9. 

Not  re-enacted . 


Art.  XVI. 


Art.  IX,  Sec.  i. 
Art  IX,  Sec.  2. 
Art.  IX,  Sec.  3. 
Art.  IX,  Sec.  4. 
Art.  IX,  Sec.  5. 
Not  re-enacted. 

Art.  II,  Sees,  n,  12,  13. 


Art.  II.  Sees.  1-8. 


Not  re-enacted. 


O>NCF.RNIN<;    THI-:   \v.-\Ti-;>iS  <>i    MB  STATE. 

A     BILL 
POK 

AN    ACT     I'RESCRIISINi.     RE'.l    i.ATK»N>    F»>R    TIN-.    APPROPRIATION. 

TRIIU  TION  AND  USE  »>i-  WATER,  TIM-:  CO.NSTRI  CTION  AND  MAIN- 
H-NANCE  OF  W(>KKS  FOR  THE  INVERSION,  CONVEYANCE,  Kl 
n  NT10N,  "STORAGE  AND  DISTRIBUTION  OF  WATER.  THI-:  CON- 
DEMNATION OF  LANDS  FOR  THE  MTE  AND  WAV  OF  WORKS  FOR 
<UCH  PURPOSE  AND  FOR  THE  SITE  OF  PUBLIC  MILLS,  AND  FOR 
ROADS  AND  WAYS  THEREFROM,  AND  FOR  DRAINAGE  DITCHES, 

\ND  FOR  THE  CONDEMNATION  OF  WATER  RIGHTS  AND  THF. 
WORKS  FOR  THE  CONVEYANCE,  DIVERSION  OR  STORAGE  THERE- 
FOR CERTAIN  PUBLIC  USES;  REGULATING  THE  APPROPRIA- 
TION OF  SUBTERRANEAN  AND  PERCOLATING  WATERS  AND  THE 
SINKING  AND  MANAGEMENT  OF  ARTESIAN  WELLS;  PROVIDING 
FOR  THE  APPOINTMENT  OF  OFFICERS  FOR  THE  SURVEY  AND 
MEASUREMENT  OF  THE  STREAMS  OF  THE  STATE,  AND  THE 
St'RVEY.  MEASUREMENT  AND  RATING  OF  WORKS  FOR  THE 
DIVERSION  OR  STORAGE  OP  WATER,  AND  FOR  CONTROLLING 
THE  DISTRIBUTION  OF  WATER  THROUGHOUT  THE  STATE  AND 
TUP:  SEVERAL  WATER  DIVISIONS  THEREOF,  DEFINING  THEIR 
POWERS,  PRESCRIBING  THEIR  COMPENSATION  AND  PROVIDING 
FOR  THE  PAYMENT  THEREOF  ;  PRESCRIBING  REGULATIONS  FOR 
(ESTABLISHING  RECORD  EVIDENCE  OF  THE  RIGHT  TO  THE  EN- 
JOYMENT OF  WATER ;  REGULATIONS  FOR  ADJUDICATING  THE 
RIGHTS  AND  PRIORITIES  OF  RIGHT  OF  THOSE  DIVERTING, 
CARRYING  OR  STORING  WATER  FOR  IRRIGATION  IN  THE  SEV- 
ERAL WATER  DIVISIONS;  PROVIDING  FOR  THE  EXPENSES  OF 
SUCH  ADJUDICATION  AND  FOR  THE  APPORTIONMENT  AND  PAY- 
MENT THEREOF  ;  PRESCRIBING  REGULATIONS  FOR  ASCERTAIN- 
ING THE  RIGHTS  OF  PROPRIETORS  NOT  PARTICIPATING  IN  SUCH 
PROCEEDINGS,  AND  THOSE  ENTITLED  TO  WATER  FOR  USES 
OTHER  THAN  THE  IRRIGATION  OF  LANDS;  DEFINING  CERTAIN 
DOMESTIC  USES  AND  PROHIBITING  THE  ABUSE  OF  THE  PREFER- 
ENCE IN  RESPECT  THEREOF  GRANTED  BY  THE  CONSTITUTION; 
PRESCRIBING  AND  REGULATING  THE  POWERS  OF  CITIES  AND 
TOWNS,  AND  CORPORATIONS  SUPPLYING  CITIES  AND  TOWNS  AND 
THE  INHABITANTS  THEREOF  IN  APPROPRIATING  OR  ACQUIRING 
WATER  FOR  SUCH  USES  ;  PRESCRIBING  THE  DUTIES  AND  LIA- 
BILITIES OF  THE  CARRIERS  OF  WATER  AND  THE  RIGHTS  OF 
THE  CONSUMERS  THEREOF,  AND  REGULATIONS  FOR  ASCERTAIN- 
ING, DETERMINING  AND  SETTLING  THE  RIGHTS  OF  SUCH  CON- 
~>IMERS  FROM  ANY  DITCH  OR  OTHER  WORKS  AMONG  THEM- 
SELVES; REGULATING  THE  FENCING  OF  DITCHES  AND  REQUIR- 
ING THE  PROPRIETORS  OF  LANDS,  IN  CERTAIN  CASES,  TO  GIVE 
PASSAGE 'TO  THE  OFFICIALS  CHARGED  WITH  THE  ADMINISTRA- 
TION OF  WATER  ;  DEFINING  WHAT  SHALL  IN  CERTAIN  CASES  BE 
DEEMED  AN  ABANDONMENT  OF  THE  RIGHT  TO  WATER  :  REGU- 
LATING THE  PROCEEDINGS  OF  THE  BOARD  OF  COUNTY  COMMIS- 
MONERS  IN  PROCEEDINGS  FOR  DETERMINING  THE  MAXIMUM 
RATE  OF  COMPEESATION  TO  BE  PAID  FOR  THE  USE  OF  WATER  ; 
AUTHORIZING  VARIATIONS  IN  THE  MAXIMUM  RATE  BETWEEN 
CERTAIN  CLASSES  OF  CONSUMERS,  ALLOWING  CHANGES  OF 
VENUE  IN  SUCH  PROCEEDINGS,  AND  APPEALS  FROM  THE  COUNTY 
COMMISSIONERS,  AND  REGULATING  THE  SAME;  AUTHORIZING 
THE  PROPRIETORS  OF  DITCHES  AND  CONSUMERS  THEREUNDER 

TO   AGREE   FOR    THE    ROTATION   OF   THE   WATER    AMONG  THEM- 

I 


*2<>  REPORT   OF  THE   COMMISSION 

SELVES;  PROHIBITING  UNLAWFUL  INTERFERENCE  WITH  AND 
MALICIOUS  INJURY  TO  WORKS  FOR  THE  DIVERSION,  CONVEY- 
ANCE. STORAGE  OR  DISTRIBUTION  OF  WATER;  DIVIDING  THE 
STATE  INTO  WATER  DIVISIONS  AND  WATER  DISTRICTS,  AUTHOR- 
IZING THE  INCORPORATION  OF  SUCH  DISTRICTS  AND  DIVISIONS 
AND  PRESCRIBING  THE  POWERS  THEREOF;  AND  PROVIDING 
PENALTIES  FOR  ITS  VIOLATION  AND  REGULATIONS  FOR  ENFORC- 
ING SUCH  PENALTIES,  AND  REPEALING  CERTAIN  DESIGNATED 
FORMER  ACTS,  AND  ALL  ACTS  IN  CONFLICT  THEREWITH. 

Be  it  enacted  by  the.  General  Assembly  of  the  State  of  Colorado: 
In  manner  following;  that  is  to  say: 

ARTICLE   I. 

OF  THE    DIVERSION    AND    DISTRIBUTION    OF    WATER    FOR    DOMESTIC 

USES. 

SECTION  i.  The  phrase,  "Domestic  Purposes,"  as 
contained  in  the  Constitution  and  in  this  Act,  shall  be 
construed  to  include  among  other  uses  the  supplying  of 
domestic  animals  kept  with  and  for  the  use  of  the 
household,  not  exceeding  the  number  exempt  from 
execution;  and  the  watering  and  sustaining  of  trees, 
grass,  flowers  and  shrubbery  about  the  house  of  the  con- 
sumer within  an  area  not  exceeding  one-half  acre  of 
land. 

When  the  greater  part  of  the  waters  diverted,  col- 
lected or  stored  by  any  works  have  been,  or  shall  be, 
customarily  applied  to  the  irrigation  of  lauds,  the  pro- 
prietors of  such  works  shall  not,  in  the  absence  o£  valid 
contract  thereunto,  be  required  to  deliver  water  for 
domestic  uses  merely,  nor  permitted  so  to  do  to  the 
prejudice  of  any  prior  appropriator  for  irrigation.  • 

If  any  person  having  procured  water  to  be  delivered 
to  him  or  turned  into  any  ditch,  coflduit  or  other  works, 
wherefrorn  he  is  using  or  wont  to  use  water,  by  pretense 
that  he  or  other  persons  are  entitled  thereto,  or  requir- 
ing the  same,  for  domestic  uses,  shall  afterwards  devote 
the  said  waters  or  knowingly  suffer  the  same  to  flow  to 
other  than  domestic  uses,  to  the  injury  of  others  having 
a  prior  right  to  enjoy  such  waters  for  the  same  use,  every 
person  so  offending  shall  be  deemed  guilty  of  a  misde- 


-.;   Tin-:   WATERS  OF   THE   STATE,        -J7 

:ior,  and  on  conviction  thereof,  shall  pay  a  fine  of 
not  less  than  ten  dollars  and  not  exceeding  three  hun- 
dred dollars,  in  the  discretion  of  the  Court  wherein 
conviction  is  had.  ICach  day  of  such  improper  applica- 
tion of  water  obtained  in  the  manner  aforesaid  shall  be 
deemed  a  separate  offense. 

SEC.  2.  Any  person  may  at  any  time  take  water 
from  any  natural  stream  or  open  ditch,  conduit  or  reser- 
voir at  any  public  road-crossing  or  at  any  place  upon 
his  own  lands,  or  upon  the  lands  of  others,  by  license 
of  .the  proprietor  thereof,  or  without  such  license  where 
such  lands  are  uninclosed  and  uncultivated,  for  filling 
barrels  or  other  vessels  for  his  domestic  uses. 

SEC.  3.  Every  person  resorting  for  the  purposes 
aforesaid  to  any  ditch,  conduit  or  reservoir,  shall  be 
responsible  that  no  injury  be  done  to  the  embankment 
thereof  or  the  fence  enclosing  the  same,  or  other  parts 
or  appurtenances  thereof,  and  that  the  waters  thereof 
be  not  fouled  or  polluted  by  any  animal  by  him  driven 
thereto  or  watered  thereat. 

SEC.  4.  The  proprietor  of  any  ditch,  conduit  or 
other  works  for  the  diversion,  carrying  or  storage  of 
water,  may  fence  and  enclose  the  same  or  any  part 
thereof  with  a  lawful  fence  and  exclude  all  live  stock 
therefrom.  At  all  public  and  private  road  crossings  free 
passage  shall  be  left  of  convenient  width  and  to  the  full 
width  of  the  bridge  constructed  or  required  by  law  to  be 
constructed  thereat;  as  also  at  all  public  road  crossings 
convenient  opportunity  for  those  passing  thereat  to  dip 
or  draw  water  from  such  ditch  or  canal  by  means  of 
buckets;  and  at  the  rating  flume  and  head-gate  of  every 
such  ditch  or  canal  the  proprietors  thereof  constructing 
such  fence  shall  establish  and  always  maintain  therein, 
gate-ways,  or  other  convenient  means  of  passage  to  the 
satisfaction  of  the  Water  Commissioner.  Where  any- 
such  ditch,  conduit  or  other  works  passes  through  any 
open  cattle  range,  the  proprietors  thereof  erecting  such 


28  REPORT   OF   THE   COMMISSION 

fences  shall  be  required  to  leave  arid  maintain  conven- 
ient passage  ways  for  the  cattle  grazing  upon  such 
range,  and  those  attending  the  same,  at  convenient 
places,  at  least  one  in  each  three  miles  of  the  length  of 
such  ditch.  The  proprietor  of  any  lands  through  which 
such  ditch,  conduit  or  other  works  may  be  constructed, 
shall  be  entitled  to  lay  bridges  across  the  same  at  his 
pleasure  at  any  place  or  places  upon  his  said  lands,  and 
to  open  such  fences  and  set  and  maintain  gates  or  bar 
ways  at  any  such  bridge  or  set  cross-fences  thereat; 
Provided,  however,  that  no  such  proprietor  of  lands 
shall  by  means  of  such  bridge  or  its  appurtenances 
unnecessarily  obstruct  the  flow  of  water  in  such  ditch 
or  canal,  nor  leave  such  ditch  or  canal  at  such  opening 
accessible  to  live  stock.  Gates  or  other  convenient 
means  of  passage  shall  be  placed  and  maintained  in 
such  cross-fences  on  each  side  of  the  ditch  or  canal  at 
every  such  bridge.  The  proprietors  of  such  ditch  or 
canal  shall  be  entitled  to  take  up  such  bridge  or  tem- 
porarily remove  the  same  whenever  necessary  for  cleans- 
ing, repairing  or  enlarging  such  ditch;  but  in  every 
case  shall,  forthwith  after  completion  of  the  work  of 
cleansing,  repairing  or  enlarging  the  ditch,  replace  the 
same,  and  in  case  of  the  widening  of  the  ditch  shall 
lengthen  such  bridge  as  may  be  necessary. 

In  case  of  disagreement  touching  the  compensation  to 
be  paid  by  any  person  desiring  to  construct  a  private  way 
across  any  such  ditch  or  canal,  the  same  shall  be  ascer- 
tained in  the  manner  prescribed  by  the  statutes  regulat- 
ing the  exercise  of  the  power  of  eminent  domain. 

SEC.  5.  Any  person  entitled  to  the  use  of  water  for 
the  irrigation  of  lands,  may  at  his  pleasure  apply  the 
water  to  which  he  is  so  entitled  or  any  part  thereof  to 
the  filling  of  covered  cisterns,  at  his  residence,  for  the 
domestic  uses  of  such  person. 

SEC.  6.  Save  in  the  case  of  ditches  or  conduits  sup- 
plying a  town  or  city  or  the  inhabitants  thereof,  and 


CONCKKMNV,    THI-.    WATI-KS    <>!•    TH1- 


maintained  for  that  purpose,  water  shall  not  during  the 
irrigation  season  be  turned  into  or  suffered  to  flow  in  any 
open  ditch  or  conduit  for  supplying  domestic  uses,  when 
to  permit  such  flow  of  waters  for  domestic  uses  will 
result  in  unreasonable  and  disproportionate  waste  from 
seepage  or  evaporation. 

SEC.  7.  The  authorities  of  any  city  or  town  or  any 
person  or  corporation  supply  such  city  or  town  with 
water,  may  divert  the  waters  of  any  natural  stream  and 
may,  in  the  bed  of  any  natural  stream  or  other  suitable 
place,  sink  wells  or  construct  reservoirs,  subterranean 
galleries,  cisterns,  filtering  wells  or  other  like  works  for 
collecting  or  storing  water  for  the  domestic  uses  of  the 
inhabitants  thereof,  and  may  by  means  of  ditches  or 
canals  or  conduits,  or  by  means  of  pumps  or  other 
works,  raise,  force  and  convey  the  said  waters  into  such 
reservoir  or  other  place  of  storage  and  distribute  the 
same  in  such  city  or  town  for  the  uses  thereof,  and  of 
the  inhabitants  thereof. 

SEC.  8.  The  authorities  of  any  city  or  town,  or  any 
corporation  organized  for  supplying  the  same  or  the 
inhabitants  thereof  with  water  for  domestic  or  sanitary 
purposes,  or  other  purpose  whatsoever,  or  any  corpora- 
tion organized  for  constructing,  maintaining  and  oper- 
ating a  railway  as  a  common  carrier,  or  for  constructing, 
maintaining  and  operating  any  public  grist-mill,  or  any 
public  mill  or  other  works  for  the  reduction  or  treatment 
of  gold  or  silver  bearing  ores  or  other  ores,  for  all  who 
may  resort  thereto,  may  whenever  it  shall  be  necessary 
for  the  purposes  of  such  corporation  to  take,  appropriate 
or  damage  the  works  of  any  other  person  or  corporation 
constructed  or  used  for  the  diversion,  retention  or  storage 
of  waters,  and  the  right  of  such  person  or  corporation 
to  the  waters  thereby  diverted,  conveyed,  collected, 
retained  or  stored,  or  any  part  thereof,  and  the  com- 
pensation to  be  paid  for  or  in  respect  of  the  rights 
and  properties  so  sought  to  be  appropriated  or  damaged, 


*30  REPORT  OF  THE   COMMISSION 

can  not  be  agreed  upon  between  such  city,  town  or  other 
corporation  and  the  owners  of  the  rights  and  properties 
so  sought  to  be  taken  or  damaged,  and  those  entitled  to 
the  enjoyment  of  water  therefrom,  or  such  owners  or 
persons  entitled  to  the  enjoyment  of  water  from  such 
works,  or  any  of  them,  are  or  is  incapable  of  consenting, 
or  the  name  or  residence  of  any  such  owner  or  person, 
be  unknown,  or  any  such  owner  or  person  entitled  to  the 
enjoyment  of  water  from  such  works  is  a  non-resident  of 
the  State,  or  can  not  be  found,  it  shall  be  lawful  for  such 
city,  town  or  other  corporation  to  cause  the  compensa- 
tion and  damages  in  that  behalf  payable,  to  be  ascer- 
tained in  the  manner  prescribed  in  the  laws  regulating 
the  exercise  of  the  right  of  eminent  domain.  And  every 
such  city,  town  or  corporation  shall  be  entitled  to  the 
same  orders,  rules  and  other  proceedings  in  the  same 
case  and  of  like  effect  as  may  be  prescribed  in  such  laws. 

SEC.  9.  No  city  or  town  nor  any  person  or  corpora- 
tion supplying  any  city  or  town  or  the  inhabitants 
thereof  with  water,  shall  be  permitted  to  divert  or  store 
up  the  water  of  any  natural  stream,  or  take  water  from 
any  works  constructed  for  other  purposes,  in  quantity 
greater  than  required  by  the  reasonable  needs  of  such 
.city  or  town  and  the  inhabitants  thereof;  nor  shall  such 
city,  town,  person  or  corporation  suffer  the  waters  so 
diverted  or  taken  to  unreasonably  flow  to  waste. 

SEC.  10.  If  any  proprietor  of  any  ditch,  conduit  or 
other  works  constructed  for  the  diversion  of  water  from 
any  natural  stream  for  purposes  of  irrigation  or  other- 
wise, or  any  person  entitled  to  the  enjoyment  of  water 
from  such  works,  shall  in  writing  represent  to  the  Super- 
intendent of  Irrigation  of  the  Water  Division,  or  the 
Water  Commissioner  of  the  Water  District  wherein  such 
ditch,  conduit  or  other  works  may  be  situate,  that  any 
municipal  corporation  situate  in  such  Water  Division,  or 
any  person  or  corporation  supplying  water  to  such  muni- 
cipal corporation  or  the  inhabitants  thereof,  is  diverting, 


CONCERNING   Tin-:   WATKUS  OF   Tin-:   STATE.        •">  1 

or  an-  or  is  wont  to  divert  the  waters  of  the  same  natural 
stream  in  unnecessary  quantities,  or  collecting,  storing 
up  and  detaining  water  beyond  the  reasonable  needs  of 
such  municipal  corporation  or  the  inhabitants  thereof, 
or  that  such  city  or  town  or  otlier  corporation  or  person 
is  suffering  water  by  it  or  him  diverted  or  taken  for  the 
purposes  aforesaid,  to  be  used  for  other  purposes,  or  to 
unreasonably  go  to  waste,  it  shall  be  the  duty  of  such 
Superintendent  of  Irrigation  or  Water  Commissioner  to 
cause  to  be  instituted  in  the  District  Court,  to  which  is 
committed  jurisdiction  for  ascertaining  the  priority  of 
right  among  the  appropriators  of  water  in  such  Water 
Division,  an  action  to  restrain  such  unnecessary  diver- 
sion, retention  or  waste  of  water;  Provided,  however, 
That  not  more  than  one  such  action  shall  be  instituted 
in  any  two  years,  to  restrain  the  retention,  diversion  or 
storage  of  water  in  excessive  quantity. 

SEC.  ii.  Every  such  action  shall  be  in  the  name  of 
The  People  of  the  State  of  Colorado  and  shall  be  prose- 
cuted by  the  Attorney  General,  and  such  special  counsel 
as  may  be  employed  by  the  officer  instituting  the  same. 
The  reasonable  fees  of  such  special  counsel  shall,  at  the 
termination  of  the  action  be  fixed  by  the  Court  and 
together  with  all  other  costs  of  the  action  be  apportioned 
by  the  Court  among  the  several  counties  of  the  Water 
Division,  or  those  of  them  which  to  the  Court  shall 
seem  interested  in  the  question,  in  such  proportions  as  to 
the  Court  shall  seem  fit,  and  shall,  on  the  filing  of  a  cer- 
tified copy  of  the  order  fixing  and  allowing  such  fees  of 
counsel  and  apportioning  the  same  among  the  several 
counties  be  allowed  by  the  County  Commissioners  of 
each  of  the  several  counties  in  the  proportions  and  to 
the  amounts  fixed  by  the  Court;  Provided,  however, 
That  if  judgment  be  given  against  the  defendant  costs 
shall  be  adjudged  as  in  other  actions. 

SEC.  12.  Any  city  or  town  or  any  person  or  corpor- 
ation supplying  water  to  any  city  or  town,  or  the  inhab- 


')-  REPORT   OF  THE   COMMISSION 

itants  thereof,  may,  at  any  time,  but  not  oftener  than 
once  in  two  years,  apply  to  the  District  Court  to  which, 
by  this  act  jurisdiction  is  committed,  for  ascertaining 
and  settling  the  priority  of  right  among  the  appropria- 
tors  of  water  in  the  Water  Division  wherein  the  source 
of  water  supply  of  such  city  or  town  shall  be  situate,  to 
settle  and  determine  the  amount  of  water  necessary  for 
supplying  such  city  or  town  and  the  inhabitants  thereof 
and  to  establish  its  right  in  that  behalf.  One  or  more 
of  the  persons  and  corporations  who  shall  have  theretofore 
filed  with  the  State  Engineer  the  statement  and  certifi- 
cate required  by  the  thirteenth  section  of  the  eighth 
Article  of  this  act,  their  heirs,  successors  and  assigns 
shall  be  made  parties  defendant  thereto;  and  all  others 
in  interest  may  be  joined  therein  by  the  title  "All  other 

appropriators  of  water  in  the Water  Division;" 

and  the  Court  may  afterwards  in  its  discretion  allow 
any  others  of  such  appropriators  who  may  apply,  to  be 
admitted  and  named  as  defendants  in  such  action, 
together  with  the  persons  first  named  as  aforesaid,  and 
proceedings  shall  be  had  therein  as  in  other  actions. 

SEC.  13.  Every  such  action  shall  be  defended  by 
the  Attorney  General  and  such  special  counsel  as  may 
by  him  with  the  approval  of  the  Court  be  employed  for 
the  purpose.  The  reasonable  fees  of  such  special 
counsel  shall,  at  the  termination  of  the  action,  be  ascer- 
tained and  fixed  by  the  Court,  and  together  with  all 
other  costs  made  or  incurred  in  or  about  the  defense  of 
such  action,  be  apportioned  by  the  Court  among  the 
several  counties  of  the  Water  Division,  or  those  of  them 
which  to  the  Court  shall  seem  interested  in  the  question 
in  the  manner  provided  by  section  eleven  of  this  Article. 

SEC.  14.  In  every  such  action  the  form  of  process 
and  pleadings  and  other  proceedings  shall  be  as  prescribed 
by  law  in  other  actions;  and  the  Court  may,  on  peti- 
tion of  the  officer  causing  the  institution  of  such 
action,  or  his  successor  in  office  or  of  the  defendants 


CONCI-KNINC.   THE    WATERS   OP   Tin-:   STATE. 

therein,  change  the  venue  for  like  cause  as  in  other 
actions.  When  the  final  decree  is  rendered  therein,  the 
Conit  to  which  the  venue  is  changed  as  aforesaid  shall 
cause  a  certified  copy  of  such  decree  to  be  transmitted 
to  the  Clerk  of  the  Court  wherein  such  action  was  insti- 
tuted, and  such  Court  may  proceed  by  attachment  or 
other  proper  process  for  disobedience  thereof,  in  like 
manner  as  if  such  decree  had  been  given  in  that  Court. 

SEC.  15.  In  any  such  action  the  said  District  Court 
shall  have  power  to  cause  the  ditches  and  other  works 
whereby  waters  are  diverted  from  any  natural  stream, 
or  collected  or  stored  for  the  use  of  such  city  or 
town,  or  the  inhabitants  thereof,  to  be  rated,  measured 
and  the  capacity  thereof  ascertained,  and  to  ascertain, 
fix  and  determine  by  its  decree  the  needs  of  such  city  or 
town  and  the  inhabitants  thereof,  during  the  two  years 
next  following  the  entry  of  such  decree,  and  the  amount 
of  water  reasonably  necessary  for  supplying  the  same, 
and  to  restrain  by  injunction  and  other  preventive  pro- 
cess, the  unnecessary  diversion,  storage  or  retention  of 
water  beyond  the  needs  of  such  city  or  town  or  the 
inhabitants  thereof,  and  may  by  attachment,  sequestra- 
tion or  other  process,  enforce  its  decree  in  that  behalf 
or  punish  any  violation  thereof. 

SEC.  16.  Any  city  or  town,  or  any  defendant  named 
in  any  such  action,  or  the  officer  causing  any  such 
action  to  be  instituted,  or  his  successor  in  office,  may 
prosecute  an  appeal  to,  or  writ  of  error  from,  the 
Supreme  Court,  to  review  the  decree  given  in  such 
action  on  like  terms  and  in  like  manner  as  in  other 
cases;  Provided,  however,  That  the  bond  in  such  ap- 
peal be  in  amount  only  sufficient  to  cover  costs;  and  in 
case  no  appeal  be  taken  from  such  decree  by  the  officer 
causing  the  same  to  be  instituted,  or  the  defendants 
named  in  any  suit  brought  by  any  city  or  town,  or  cor- 
poration supplying  the  same,  with  water,  then  and  in 
either  such  case  the  proprietor  of  any  ditch  or  other 


34A  REPORT   OF   THE   COMMISSION 

works  diverting  water  from  the  same  natural  stream  or 
source  of  supply  from  which  water  is  taken  for  supply- 
ing such  city  or  town,  or  the  stream  to  which  such 
stream  is  tributary,  may,  upon  sworn  petition  to  the 
District  Court  or  the  Judge  thereof  wherein  such  decree 
was  given,  be  allowed  such  appeal;  or  on  like  petition 
to  the  Supreme  Court  or  any  Judge  thereof,  any  such 
person  may  be  allowed  a  writ  of  error  for  reviewing  the 
decree  aforesaid,  upon  the  same  terms  and  conditions, 
and  to  be  prosecuted  in  the  same  manner  as  herein- 
before specified.  No  such  appeal  or  writ  of  error  shall 
operate  as  or  be  made  a  supersedeas. 


ARTICLE   II. 

OF  THE  ACQUISITION  OF  THE  RIGHT  TO  THE   USE   OF  WATER. 

SECTION  i.  Every  inhabitant  of  the  State  of  Colo- 
rado shall  be  entitled  to  divert,  collect  and  appropriate, 
for  use  in  this  State,  either  by  such  person  or  others,  the 
waters  of  any  natural  stream,  or  any  spring,  lake,  pond, 
marsh  or  bog  naturally  discharging  its  waters  into  any 
natural  stream,  or  waters  seeping  or  escaping  from  any 
ditch,  conduit  or  reservoir  for  conveying  or  storing 
water,  saving  the  rights  of  prior  appropriators  of  such 
waters,  and  the  rights  of  those  desiring  to  use  the  same 
for  any  preferred  use.  Natural  lakes  and  ponds  having 
no  outlet  shall  be  deemed  parcel  of  the  lands  whereon 
the  same  may  be  situate,  and  only  the  proprietors  of 
such  lands  shall  be  entitled  to  draw  off  or  appropriate 
the  same. 

SEC.  2.  The  application  of  water  to  any  beneficial 
purpose  whatsoever  shall  be  deemed  an  appropriation 
thereof,  and  shall  entitle  the  appropriator  thereof  to  the 
use  of  such  water  to  the  extent  of  such  appropriation, 
saving  the  rights  of  prior  appropriators  thereof,  and 
saving  also  the  rights  of  those  enlitled  thereto  for  any 
preferred  use. 


CONCERNING  THE  WATERS  OF  THE 

SKC.  3.  No  person  being  entitled  to  the  enjoyment 
of  water  for  any  purpose  shall  use  the  same  in  excessive 
quantity  or  suffer  the  same  to  run  to  waste.  And  if 
any  person  using  the  water  of  any  natural  stream  or 
other  source  of  supply,  shall  by  reason  of  his  omission 
to  maintain  and  keep  the  banks  or  other  appurtenances 
of  the  works  whereby  the  same  are  diverted,  conveyed 
or  stored,  or  other  negligence,  whatsoever,  knowingly 
suffer  such  water  to  run  to  waste,  or  apply  or  use  the 
same  in  greater  quantity  than  necessary  for  his  purposes, 
he  shall  be  liable  to  a  fine  in  not  less  than  five  dollars  and 
not  exceeding  three  hundred  dollars,  in  the  discretion  of 
the  Court  wherein  conviction  shall  be  had. 

SEC.  4.  Any  person  having  acquired  title  to  the  use 
of  water  for  any  purpose  whatsoever,  may  change  the 
place  of  diversion  thereof,  or  the  place,  purpose  or  man- 
ner of  use  thereof,  at  his  pleasure;  Provided,  however, 
That  nothing  in  this  act  contained  shall  be  so  construed 
as  to  authorize  any  person  entitled  to  the  use  or  enjoy- 
ment of  water  to  change  the  place  of  diversion  or  use 
thereof  to  the  injury  of  any  other  appropriator;  And 
provided  fttrther,  That  the  proprietor  of  any  ditch, 
canal  or  other  works  for  the  diversion,  conveyance, 
retention  or  storage  of  water,  or  other  person  whatsoever, 
shall  not  be  required  to  permit  such  waters  to  run  in  the 
same  course  or  place,  or  be  retained,  stored  or  used  in 
the  same  place,  or  for  the  same  purpose,  in  order  to  give 
opportunity  to  any  other  person  to  enjoy  the  seepage 
from  such  works. 

SEC.  5.  When  any  person  operating  any  mine,  or 
exploring  ground  supposed  to  contain  valuable  mineral 
deposits,  shall  hoist,  raise,  or  by  any  means  discharge 
water  from  such  mines  or  ground,  or  divert  the  same  out 
of  any  natural  channel,  or  whenever  any  person,  for  the 
mere  purpose  of  draining  lands,  shall  collect  and  drain 
water  or  discharge  the  water  naturally  contained  or  per- 
colating in  such  lands,  and  permit  the  same  to  flow  away 


36  REPORT   OF  THE   COMMISSION 

without  applying  the  same  to  any  beneficial  use,  such 
water  shall  be  deemed  and  taken  as  derelict,  and  as  part 
of  the  waters  of  such  natural  stream  or  channel  into 
which  the  same  is  discharged,  or  whereunto  the 
same  flows. 

SEC.  6.  Any  person  who  having  acquired  the  right 
to  the  use  or  enjoyment  of  water  shall  for  three  years 
consecutively,  or  in  the  case  of  water  applied  to  the  irri- 
gation of  lands  during  three  irrigating  seasons  consecu- 
tively, fail  to  apply  such  water  to  a  beneficial  use,  the 
same  shall  be  deemed  to  be  abandoned,  and  if  taken 
directly  by  such  person  out  of  any  natural  stream  or 
source  of  supply  be  subject  to  appropriation;  or  if  taken 
from  any  ditch,  conduit  or  reservoir,  the  property  of 
another,  or  other  persons,  or  any  corporation,  may  by 
the  proprietor  or  proprietors  of  such  works  be  thereafter 
delivered  or  supplied  to  the  use  of  any  other  person; 
Provided,  however,  That  the  failure  of  the  person  enti- 
tled to  the  enjoyment  of  water  to  apply  the  same  to  the 
irrigation  of  his  lands  in  any  season,  when  by  reason  of 
excessive  rain-fall,  or  other  reason  whatsoever,  such 
irrigation  is  unnecessary,  or  when  by  reason  of  infancy 
or  disability  from  sickness,  or  that  said  person  is  pre- 
vented from  the  cultivation  of  his  lands,  or  the  use  of 
such  water,  by  imprisonment,  or  by  any  prohibitory 
process  of  the  law,  or  is  kept  out  of  the  possession  of  his 
lands,  or  the  works  or  place  in  respect  whereof  such 
waters  have  heretofore  been  customarily  used,  the  failure 
or  omission  of  such  person  to  apply  such  water  to  benefi- 
cial use  shall  not  be  deemed  an  abandonment.  Nothing 
herein  or  elsewhere  in  this  act  contained  shall  be  con- 
strued to  prohibit  the  courts  from  inferring  an  abandon- 
ment from  non-user  for  a  less  period,  where  accompanied 
by  acts  or  words  manifesting  a  purpose  in  the  mind  of 
the  person  entitled  to  no  longer  avail  himself  of  his  right. 

SEC.  7.  Any  person  or  corporation  may,  during  the 
periods  between  the  seasons  of  irrigation  or  in  time  of 


MING    THE    WATERS   OF   TIM-    STATE. 


Hoods,  divert  and  take-  the  waters  of  any  natural  stream, 
not  theretofore  appropriated,  and  collect  and  store  away 
the  same  for  future  use  by  such  person,  or  corporation, 
or  other  person  or  corporation  whomsoever,  during  the 
same  or  next  succeeding  season,  and  the  proprietors  of 
any  ditch,  conduit  or  other  works  for  the  conveyance  of 
water  for  the  individual  use  of  other  persons  than  the 
proprietors  of  such  works,  having  capacity  therefor,  shall 
on  payment  of  the  rate  fixed  by  the  County  Commis- 
sioners therefor,  or  a  reasonable  rate,  if  no  rate  hath 
been  fixed  by  the  County  Commissioners,  carry  such 
waters  to  the  place  of  storage,  or  to  the  place  upon  such 
works  nearest  to  the  place  of  storage;  Provided,  how- 
fi'cj\  That  wherever  the  appropriate rs  of  water,  from 
any  natural  stream,  have,  during  seasons  of  scarcity 
beeir  wont  to  use  and  enjoy  the  flood  waters  thereof  for 
the  irrigation  of  their  lands,  and  thereafter  any  person 
or  corporation  by  means  of  reservoirs  or  other  works 
shall  have  collected,  retained  or  stored  waters  whereunto, 
or  to  any  part  whereof,  such  prior  appropriators  of  the 
waters  of  such  stream  or  the  stream  whereunto  the  same 
is  tributary,  are  entitled,  the  Water  Commissioner  shall 
cause  the  gates  of  such  reservoir  or  other  works  of  stor- 
age to  be  opened  so  as  to  discharge  and  send  down  water 
so  collected  to  the  amount  to  which  such  prior  appropria- 
tors are  entitled;  and  no  person  shall  be  entitled  to  store 
up  waters  for  use  in  the  following  season,  when  the 
same  are  necessary  for  use  in  the  season  then  current. 

SEC.  8.  Any  person  entitled  to  the  use  of  water  for 
the  irrigation  of  lands  or  other  purposes  whatsoever 
may,  at  any  time  while  so  entitled  to  the  use  thereof, 
collect  and  store  the  same  up  for  use  presently  there- 
after, and  the  failure  to  apply  or  use  such  waters  during 
the  period  of  such  collection  and  storage  shall  not  be 
deemed  or  taken  to  impair  his  right  in  that  behalf. 

SEC.  9.  Wherever  a  person  or  corporation  heretofore 
constructing  any  ditch,  conduit,  reservoir  or  other  works 


38  REPORT   OF  THE  COMMISSION 

for  the  diversion,  conveyance,  retention  or  storage  of 
water,  or  any  enlargement  of  such  works,  hath  pro- 
ceeded with  reasonable  diligence  in  such  construction, 
or  the  work  of  such  enlargement,  his  appropriation  shall 
be  deemed  to  date  from  the  commencement  of  such 
works;  and  the  commencement  of  the  survey,  if  any,  for 
such  ditch,  conduit,  reservoir  or  other  works,  or  such 
enlargement,  shall  be  deemed  the  commencement  of 
such  work  or  enlargement.  If  any  person  or  corpora- 
tion, hereafter  constructing  any  such  ditch,  conduit, 
reservoir  or  other  works,  or  any  enlargement  thereof, 
shall  have  caused  the  map,  description  and  statement  of 
capacity  required  by  the  eighteenth  section  of  the  fourth 
article,  to  be  filed  as  therein  required,  and  shall  have 
proceeded  with  reasonable  diligence  in  the  prosecution 
of  the  work  of  constructing  such  works,  or  enlargement, 
such  person  or  corporation  shall  be  deemed  and  taken  to 
be  entitled  to  the  way,  route  and  course  proposed  for 
such  works,  and  to  divert,  have  and  enjoy  the  waters 
thereby  proposed  to  be  taken,  collected  or  stored,  as  of 
and  from  the  day  of  commencing  the  work  of  such 
construction  or  enlargement;  or  if  such  map  or  descrip- 
tive statement  be  not  filed  as  in  the  section  aforemen- 
tioned prescribed,  within  ninety  days  after  the  com- 
mencement of  such  work  of  construction  or  enlargement, 
such  person  or  corporation  shall  be  deemed  and  taken  to 
be  entitled  to  the  way,  route  and  course  proposed  for 
such  works,  (so  far  as  not  by  him  or  them  actually  occu- 
pied) and  to  have  and  enjoy  the  waters  proposed  to  be 
diverted,  carried  or  stored  by  means  of  such  works,  (so 
far  as  not  thereby  actually  appropriated)  as  of  the  date  at 
which  such  map  and  statement  shall  be  filed  in  the  office  of 
the  State  Engineer;  Provided,  That  then,  or  within  a  rea- 
sonable time  thereafter,  duplicates  of  such  map  and  state- 
ment may  be  filed  in  the  offices  of  the  County  Clerks  of 
the  several  counties  wherein  the  said  works  are  proposed 
to  be  constructed,  and  not  sooner. 


CONCl-KNINi;    Till';    \V.\TI-RS    Ol 

The  appropriation  shall  in  every  case  be  deemed  and 
taken  to  be  accomplished  and  effectual  only  as  t 
much  water  as  shall  have  been  actually  applied  to  benefi- 
cial uses  within  a  reasonable  time  after  the  commence- 
ment of  such  works,  or  afterwards  where  no  appropriation 
has  in  the  meantime  been  initiated  by  others,  together 
with  the  reasonable  amount  necessary  to  supply  losses  by 
waste,  seepage  and  evaporation;  all  the  residue  of  the 
water  within  the  capacity  of  the  canal  or  other  works 
shall  be  deemed  to  be  derelict,  and  liable  to  appropria- 
tion by  any  subsequent  appropriator. 


ARTICLE   III. 

OF  ACQUIRING    LANDS   FOR   THE  SITE  AND  WAY   OF   WORKS   FOR  THE 
DIVERSION,   STORAGE  OR  CARRYING  OF  WATERS. 

SECTION  I.  Any  person  or  corporation,  inhabitant 
of  this  State,  desiring  to  construct  a  ditch,  conduit  or 
other  works  for  diverting  or  conveying  water  to  be  ap- 
plied to  domestic,  agricultural  or  other  uses,  or  any  dam, 
dike,  reservoir,  subteranean  gallery,  filtering  well,  or 
other  works  for  collecting,  cleansing,  filtering,  retaining 
or  storing  water  for  any  such  use,  or  to  enlarge  any  such 
ditch,  conduit  or  other  works;  or  to  change  the  course 
thereof  in  any  place,  or  to  re-locate  the  head-gate  or 
change  the  place  at  which  water  is  to  be  taken  into  such 
canal  or  other  works;  or  to  enlarge  any  ditch,  canal  or 
other  works  theretofore  constructed  by  any  other  person 
or  corporation;  or  to  construct  any  ditch,  or  lay  pipes  or 
conduits  for  conveying  or  distributing  water  so  collected 
or  stored  to  the  place  of  using  the  same;  or  to  set,  place 
or  construct  a  wheel,  pump  or  other  machine  or  appa- 
ratus for  raising  water  out  of  any  stream,  lake,  pond  or 
well,  so  that  the  same  may  flow  or  be  conveyed  to  the 
place  of  using  the  same,  and  who  being  lawfully  entitled 
to  construct,  maintain  or  operate  such  wrorks,  shall  be 
unable  to  agree  with  the  proprietor  of  any  lands  neces- 
sary to  be  taken  for  the  site  or  way  of  such  works,  or 


40  REPORT   OF  THE   COMMISSION 

any  thereof,  touching  the  compensation  and  damages 
which  ought  to  be  paid  in  respect  of  arfy  lands  taken  or 
damaged  by  the  construction  and  operation  of  such 
works,  or  any  such  enlargement  thereof,  either  by  reason 
of  the  refusal  of  such  proprietor,  or  by  reason  that  such 
proprietor  is  an  infant,  non  compos,  absent  from  the 
State,  or  cannot  be  found,  may  cause  the  damages  and 
compensation  to  be  paid  in  that  behalf  to  be  ascertained 
in  the  manner  prescribed  by  the  laws  regulating  the 
exercise  of  the  right  of  eminent  domain,  which  are  or 
may  hereafter  be  in  force,  and  shall  be  entitled  to  all 
rules,  orders  and  other  proceedings  whatsoever  pre- 
scribed by  such  laws. 

SEC.  2.  Any  such  person  or  corporation  desiring  to 
construct  or  enlarge  any  ditch,  conduit  or  other  works 
for  diverting,  conveying,  retaining,  storing,  cleansing 
or  distributing  water,  shall  be  entitled  to  condemn  and 
take  for  the  purpose  only  such  width  or  quantity  of 
lands  as  may  suffice  for  the  location  and  construction  of 
such  works,  or  such  enlargement  thereof,  and  the  subse- 
quent maintaining,  cleansing,  repairing  and  improving 
thereof,  as  may  be  necessary  from  time  to  time;  and 
every  such  ditch,  conduit  or  other  works  for  the  convey- 
ance of  water  shall  be  located  along  the  shortest  and 
most  direct  route  upon  which  the  proposed  work  can  be 
reasonably  constructed,  so  as  to  discharge  the  water  at 
the  place  proposed  for  the  use  thereof,  or  at  some  point 
where  it  can  be  conveniently  conveyed  to  such  place. 

SEC.  3.  Where  any  person  or  corporation  hath  con- 
structed a  ditch,  conduit  or  other  works  for  diverting  or 
conveying  water,  and  the  fall  of  such  water  therein  is  at 
any  place  sufficient  to  afford  power  for  the  operation  of 
machinery,  such  person  or  corporation  shall  be  entitled 
to  condemn  and  take  for  the  erection  of  a  public  mill  or 
manufactory  at  the  place  of  such  fall,  or  convenient 
thereto,  for  the  service  of  all  who  shall  resort  thereto, 
such  amount  of  land  as  may  be  necessary  for.  the  location 


coNVKkM.Nv,  THI-:  \V.\TKKS  01-  Tin-;  STA1  tl 

and  construction  of  such  mill  or  manufactory,  and  the 
necessary  appurtenances  thereof;  and  the  proprietor  of 
such  mill  or  manufactory  may  at  any  time  aftenv 
if  for  the  utilization  of  such  power  for  like  public  pur- 
pose, the  enlargement  of  such  mill  or  inarm  facto: 
the  appurtenances  thereof,  be  required,  in  like  manner 
condemn  and  take  other  lands  necessary  for  such  enlarge- 
ment; and  lands  may  be  condemned  and  taken  in  like 
manner  for  the  tail-race  for  turning  such  waters  into 
such  ditch  or  conduit  next  below  the  said  mill  or  manu- 
factory, and  for  the  roads  and  ways  necessary  for  passing 
between  such  mill  or  manufactory  and  the  nearest  con- 
venient highways.  Such  roads  shall,  however,  be 
located,  so  far  as  practicable,  upon  the  lines  of  the  public 
land  subdivisions,  and  in  all  cases  so  as  not  to  occasion 
unnecessary  injury  or  inconvenience  to  the  proprietors 
of  such  lands. 

SEC.  4.  No  parcel  of  land  shall,  without  the  written 
consent  of  the  owner  thereof,  duly  acknowledged  as 
deeds  conveying  lands  are  required  to  be,  be  subjected 
to  the  burden  of  two  or  more  ditches  or  conduits  con- 
structed for  the  purpose  of  conveying  water  over  or 
through  the  said  lands  to  any  place  or  places  beyond 
the  same,  when  the  same  object  can  feasibly  and  prac- 
ticably be  attained  by  conveying  all  the  water  necessary 
to  be  conveyed  through  or  across  such  lands  in  one 
channel,  ditch  or  conduit.  In  every  such  case  the  per- 
son or  corporation  desiring  to  cause  the  enlargement  of 
the  ditch  or  conduit  first  constructed,  may,  if  for  any 
reason  no  agreement  can  be  arrived  at,  exhibit  in  the 
proper  Court  his  or  its  petition  for  the  ascertainment  of 
the  damages  to  be  occasioned  by  such  enlargement, 
against  both  the  proprietor  of  the  ditch  or  other  works 
first  constructed,  and  the  proprietor  of  the  lands  over 
which  the  same  were  constructed,  and  the  damages 
which  they  may  severally  sustain  by  such  enlargement 
and  subsequent  use  of  such  works,  shall  be  ascertained 


42  REPORT   OF  THE   COMMISSION 

in  one  proceeding,  and  the  final  rule  to  be  entered  in? 
such  case,  upon  payment  of  the  damages  so  awarded, 
may  direct  that  the  proprietors  of  such  ditch  or  conduit 
first  constructed  shall  within  some  certain  time,  to  be 
limited  in  such  rule,  enlarge  such  works  and  the 'divert- 
ing dam,  head-gate,  rating-flume  and  other  parts  and 
appurtenances  thereof,  or  any  thereof,  in  manner  as  in 
such  rule  directed;  and  thereafter,  upon  payment  of 
such  annual  rental  at  such  time  as  may  be  ascertained 
or  fixed  in  such  rule,  receive  into  the  same  at  such  place 
and  in  such  qnantity  as  may  be  specified  in  the  rule, 
the  water  which  shall  be  delivered  thereinto  by  the 
petitioner,  and  convey  the  same  through  or  along  such 
works  to  such  place  or  places  as  may  be  named  in  the 
rule,  and  there  deliver  the  same  to  the  petitioner,  less 
by  such  amount  as  may  be  fixed  by  the  Court  for  loss 
by  seepage  and  evaporation;  and  such  rule  may  direct  a 
re-ascertainment  at  stated  periods  thereafter,  of  the  loss 
by  seepage  and  evaporation,  and  a  re-ascertainment  also 
at  stated  periods,  of  the  rental  payable  in  that  behalf; 
Provided,  No  such  ascertainment  shall  be  had  oftener 
than  once  in  two  years.  And  the  Court  may  also  by 
such  final  rule,  or  afterwards,  provide  and  direct  in  case 
the  proprietor  of  such  ditch,  canal  or  other  works  shall 
fail  or  refuse  to  enlarge  the  same  in  compliance  with 
such  rule,  that  the  party  desiring  such  enlargement  may 
enter  into  possession  of  such  works  and  cause  such 
enlargement  to  be  made,  on  first  making  compensation 
to  the  proprietor  of  such  works,  and  the  proprietor  o*f 
the  lands  over  which  the  same  are  to  be  constructed,  of 
the  damages  which  they  may  severally  sustain  by  such 
enlargement  and  subsequent  use  of  the  works,  or  may 
appoint  a  receiver  of  the  said  works  for  such  time  as 
may  be  necessary  to  make  such  enlargement  in  con- 
formity with  the  rule  in  that  behalf. 

SEC.    5.      Any   person   may  conduct  water   into  and 
along  any   of   the  natural  streams  or  channels  of  the 


Tin:  \VATI-;RS  O*  THE  STATE 


State,  and  may  withdraw  all  such  waters  so  by  him 
turned  into  such  channel,  at  any  point  desired,  without 
.id  to  prior  appropriations  of  water  from  said  stream, 
due  allowance  lx/ing  made  for  evaporation  and  seepage, 
to  be  determined  by  the  Water  Commissioner  of  the 
District,  subject  in  all  cases  to  an  appeal  to  the  Superin- 
tendent of  Irrigation  and  the  State  Engineer;  Provided, 
That  any  party  in  interest  may  apply  to  the  District 
Court  having  jurisdiction  to  ascertain  and  settle  the 
priorities  of  right  among  the  several  appropriators  of 
water  for  such  Water  Division,  to  ascertain  and  fix  by 
decree  of  such  Court  the  amount  of  such  evaporation 
and  seepage;  And  provided,  further,  That  wherever  the 
proprietor  of  any  lands  through  which  any  natural 
stream  or  channel  passes  shall  refuse  his  consent  to  the 
use  thereof  by  any  other  person  for  the  conveyance  of 
water  not  naturally  flowing  therein,  the  person  desiring 
such  use  of  such  channel  may  cause  the  compensation 
to  be  paid  in  that  behalf,  and  the  loss  by  seepage  and 
evaporation  to  be  ascertained  in  the  manner  prescribed 
by  the  fourth  section  of  this  Article;  and  enlargement 
thereof  may  be  directed  as  provided  in  the  said  section  v 
if  such  enlargement  be  necessary. 

SEC.  6.  Where  any  ditch,  conduit  or  other  works 
for  the  diversion  or  conveyance  of  water,  shall  be  pro- 
posed to  be  constructed  through,  along  or  across  any 
street,  avenue  or  alley  in  any  city  or  town,  damages  and 
compensation  in  that  behalf  shall  be  awarded  only  to 
the  proprietors  of  lots  taken  or  damaged  by  the  coy- 
struction  or  maintenance  of  such  works;  but  the  person 
constructing  such  ditch,  conduit  or  other  works,  or  after- 
wards maintaining  or  operating  the  same,  shall  be  sub- 
ject to  such  regulations  as  the  authorities  of  such  town 
may  reasonably  prescribe  for  enclosing  the  excavation 
during  the  period  of  construction,  or  otherwise  protect- 
ing the  inhabitants  of  such  town  from  injury  by  reason 
thereof,  or  for  bridging  such  ditch  or  conduit  at  the 


44  REPORT  OF   THE   COMMISSION 

crossing  of  streets  or  alleys  publicly  used  and  traveled 
as  such  at  the  time  of  the  construction  of  such  ditch, 
conduit  or  other  works. 

SEC.  7.  Any  person  who  shall  have  enjoyed  the  use 
of  the  waters  of  any  natural  'stream  for  the  irrigation  of 
any  meadow  or  other  land  by  the  natural  overflow,  or 
other  natural  operation,  of  such  waters,  and  by  reason 
of  the  diminution  of  the  waters  of  such  stream,  or  the 
depression,  deepening  or  other  change  of  the  channel 
thereof,  the  irrigation  of  such  meadow  or  other  lands 
therefrom,  in  as  ample  a  manner  as  formerly,  hath 
become  or  shall  become  impracticable,  shall  be  entitled, 
within  a  reasonable  time  after  such  change,  to  construct 
a  dam  or  other  works  in  such  stream  for  collecting  or 
raising  the  waters  thereof  to  the  level  of  such  meadow 
or  other  lands,  or  a  ditch  for  conveying  water  from  such 
stream  to  such  meadow  or  other  lands,  and  their  right 
to  take  and  use  the  waters  of  such  streams  by  the  means 
aforesaid,  to  the  same  amount  and  for  the  same  periods 
only  as  prior  to  such  change,  shall  be  of  the  same 
priority  and  date  as  though  such  dam,  ditch  or  other 
works  had  been  constructed  at  the  time  he,  she  or  they 
first  enjoyed  the  waters  of  such  natural  stream  for  the 
irrigation  of  said  lands;  Provided,  Nothing  herein  con- 
tained shall  be  deemed  to  impair  the  right  of  any 
person  who  appropriated  the  waters  of  such  natural 
stream  prior  to  the  use  thereof  as  aforesaid,  for  the 
irrigation  of  such  meadow  or  other  lands. 

t  SEC.  8.  In  case  the  channel  of  any  natural  stream 
^hall  have  become  so  cut  down,  lowered,  turned  aside, 
or  otherwise  changed,  from  any  cause,  as  to  prevent  any 
ditch  or  conduit  for  the  diversion  of  water,  from  receiv- 
ing the  proper  inflow  of  water  to  which  it  may  be 
entitled,  the  proprietors  of  such  ditch  or  conduit  may, 
within  a  reasonable  time  after  such  change,  extend  such 
ditch  or  conduit  to  such  stream,  or  up  along  the  course 
thereof,  or  may  erect  a  dam,  or  embankment  for  turning 


CONCI-R. \I.\C,    Till-:    WATKKS    Ol;    THI-.    STATF, 

water  into  the  same,  and  the  right  of  such  proprietors 
to  take  water  from  such  stream  through  such  ditch  or 
conduit  as  so  extended,  to  the  same  amount,  and  during 
the  same  periods  as  prior  to  such  change,  shall  be  of  the 
same  priority  as  before  such  extension;  Provided,  how- 
ever^  That  no  such  extension  shall  be  allowed  in  such 
manner  as  to  interfere  with  the  operation  or  enjoyment 
of  any  other  ditch,  conduit  or  other  works  for  the 
diversion,  conveyance  or  storage  of  water. 


ARTICLE   IV. 

OF     THE    CONSTRUCTION    AND    MAINTENANCE    OF    WORKS    FOR    THE 
DIVERSION,    CONVEYANCE   AND]  STORAGE    OF   WATER- 

SECTION  i.  Whoever  shall  propose  to  construct  any 
dam,  dyke  or  embankment  for  retaining  or  storing  water, 
or  to  enlarge  any  such  work  theretofore  constructed,  so 
that  the  same  shall  have  at  any  place  a  greater  height 
than  twelve  feet,  or  retain  or  store  a  greater  quantity  of 
water  than  fifty  acre  feet,  shall  cause  to  be  prepared  and 
submitted  to  the  State  Engineer,  drawings  and  specifica- 
tions of  the  proposed  work,  showing  the  plan,  elevation 
and  principal  sections  of  such  work,  the  quality  and 
quantities  of  the  materials  to  be  used  in  the  foundation 
and  superstructure  of  such  proposed  work  and  the  appur- 
tenances thereto,  together  with  the  manner  of  construc- 
tion thereof,  and  all  such  matters  of  detail  as  the  State 
Engineer  may  from  time  to  time  require. 

Accompanying  such  drawings  and  specifications  shall 
be  a  preliminary  plat  showing  the  location  of  such  pro- 
posed work  with  reference  to  the  public  surveys,  if  the 
same  be  on  or  within  two  miles  of  surveyed  lands,  other- 
wise with  reference  to  well  known  natural  objects;  the 
amount  of  water  proposed  to  be  collected,  retained  or 
stored  by  such  works;  the  inlet,  outlet  or  wasteways  for 
such  waters  so  far  as  the  same  can  be  conveniently 
shown;  the  water-shed,  natural  stream,  ditch,  conduit 


4<>  REPORT   OF  THE   COMMISSION 

or  source  of  supply  from  which  the  waters  proposed  to 
be  collected,  retained  or  stored  by  means  of  such  works 
are  proposed  to  be  taken,  and  such  other  matters  as  may 
be  required  by  the  State  Engineer,  The  work  shall  not 
be  proceeded  with  until  such  plat  shall  have -been  filed, 
and  the  State  Engineer  shall  have  in  writing  approved 
such  drawings  and  specifications. 

SEC.  2.  The  State  Engineer  shall,  as  speedily  as 
may  be,  examine  such  drawings  and  specifications,  and 
if  he  shall  approve  the  same,  affix  his  approval  thereto 
and  file  the  same  in  his  office,  and  shall  cause  to  be  pre- 
pared and  delivered  certified  copies  of  such  drawings 
and  specifications  as  approved  by  him,  to  the  party  pro- 
posing to  construct  such  works.  If  the  State  Engineer 
shall  disapprove  such  drawings  and  specifications,  or 
either  thereof,  he  shall  return  the  same  with  his  written 
objections  thereto,  to  the  party  proposing  the  work.  He 
may,  if  he  shall  deem  it  necessary,  require  the  person 
or  corporation  proposing  to  construct  or  enlarge  any 
such  works,  to  cause  excavations  to  be  made  to  determine 
the  character  of  the  foundation  therefor,  and  to  cause  a 
statement  concerning  the  same,  or  concerning  any  other 
fact  which  may  seem  to  him  necessary  to  be  known,  to 
be  certified  to  him  by  some  Deputy  Irrigation  Engineer 
or  Assistant  State  Engineer. 

SEC.  3.  Whoever  shall  construct  such  work  without 
first  securing  the  approval  in  writing  of  the  State  Engi- 
neer to  the  plans  and  specifications  thereof,  or  shall  con- 
struct the  same  otherwise  than  at  the  place  shown  in  such 
plat,  or  in  the  manner  designated  in  such  approved  draw- 
ings and  specifications,  or  shall,  without  such  approval, 
make  any  such  enlargement  of  any  such  work  before  that 
constructed,  shall  be  deemed  guilty  of  a  misdemeanor, 
and  upon  conviction  thereof,  pay  a  fine  of  not  exceeding 
one  thousand  dollars,  or  be  imprisoned  in  the  peniten- 
tiary for  not  exceeding  three  years,  or  be  punished  by 
both  such  fine  and  imprisonment,  in  the  discretion  of 
the  Court  wherein  conviction  is  had. 


NCBRNING   Tin-:   \VATI-RS  <>r  Tin-    STATB,        1. 

Si;.r.  i.  It  shall  be  a  part  of  the  judgment  of  con- 
viction in  every  such  case  that  the  structure  in  question 
'  ated  as  a  nuisance  by  the  sheriff  of  the  county 
wherein  the  structure  may  be,  and  the  cost  of  such 
abatement  shall  be  taxed  by  the  Court  and  judgment 
therefor  given  against  the  defendant. 

SEC.  5.  In  case  execution  for  such  costs  be  returned 
unsatisfied,  the  same  shall  be  paid  by  the  Board  of 
County  Commissioners  of  the  county  wherein  the  work 
was  constructed;  or,  if  the  same  was  situate  in  two  or 
more  counties,  then  by  the  Boards  of  Commissioners  of 
such  counties,  in  ratable  proportion  as  the  Court  wherein 
conviction  is  had  may  direct. 

SEC.  6.  Every  person  or  corporation  hereafter  con- 
structing any  ditch,  conduit  or  other  works,  for  diverting 
water  from  any  natural  stream,  shall  at  the  time  of  the 
construction  thereof,  construct  and  place  therein  a  head- 
gate  for  excluding  water  therefrom,  and  regulating  the 
flow  of  water  therein.  Every  person  or  corporation 
owning  or  controlling  any  such  ditch,  conduit  or  other 
works  heretofore  constructed,  wherein  there  shall  be  no 
such  head-gate,  shall  construct  and  place  a  head-gate  in 
such  ditch,  conduit  or  other  works,  within  ninety  days  after 
the  passage  of  this  act;  or  if  there  be  such  head-gate 
and  the  same  be  out  of  repair  or  not  of  sufficient  strength, 
nor  so  placed  and  arranged  as  to  be  efficient  or  satisfac- 
tory to  the  Water  Commissioner,  the  proprietors  of  such 
works  shall  repair,  replace,  reconstruct  or  renew  the 
same  to  the  satisfaction  of  the  Water  Commissioner 
within  such  reasonable  time,  not  exceeding  ninety  days, 
as  may  be  specified  by  order  in  writing  of  the  Water 
Commissioner,  requiring  such  repair,  replacement  or 
reconstruction.  Every  person  or  corporation  deeming 
himself  or  itself  aggrieved  by  such  order,  in  any  respect, 
may  appeal  therefrom  to  the  Superintendent  of  Irriga- 
tion for  the  Water  Division  and  to  the  State  Engineer. 
Every  such  person  or  corporation  shall  also  whenever 


4S  REPORT  OF  THE   COMMISSION 

thereunto  required  by  order  in  writing  from  the  State 
Engineer,  construct  at  such  place  or  places,  and  in  such 
manner  as  may  be  designated  or  approved  by  the  State 
Engineer,  a  rating  flume  or  measuring  device  for  rating 
or  measuring  the  flow  of  water  in  such  works,  and  shall 
always  maintain  the  same  in  good  order  and  condition 
to  the  satisfaction  of  the  Water  Commissioner;  and 
shall  put  on  such  head-gate,  a  keyed  device  or  lock 
satisfactory  to  the  Water  Commissioner  whenever 
requested  in  writing  by  the  Water  Commissioner  so  to 
do,  and  shall  upon  request  deliver  one  key  thereof  to 
the  Water  Commissioner. 

SEC.  7.  Every  such  head-gate  shall  be  placed  at  or 
near  to  the  head  of  such  ditch  or  conduit,  and  shall  be  so 
constructed  and  arranged  that  the  same  may  be  set  to 
exclude  anyTpart  of  the  waters  thereof,  and  of  such 
dimensions  and  so  designed  and  constructed,  and  so 
placed  with  reference  to  such  ditch,  conduit  or  other 
works  and  the  embankments  thereof  as,  when  closed,  to 
exclude  the  waters  of  such  stream  at  all  stages  thereof. 

Every  such  keyed  device  or  lock  shall  be  of  such 
strength  and  so  designed,  constructed  and  placed  as  to 
permit  the  locking  and  fastening  of  such  gate,  valve  or 
device  at  any  point  at  which,  as  heretofore  provided, 
the  same  may  be  set. 

SEC.  8.  Every  person,  association  or  corporation 
owning  or  controlling  any  ditch,  conduit  or  other  works 
for  the  conveyance  of  waters,  the  water  discharged 
wherefrom  hath  been  wont  to,  or  probably  may  flood  or 
damage  any  road,  highway  or  public  grounds,  or  the 
lands  of  other  proprietors,  shall  whenever  required 
thereto  by  order  in  writing  from  the  State  Engineer, 
construct  a  waste-gate  and  tail-race  for  discharging  the 
waters  of  such  ditch,  conduit  or  other  works  into  some 
other  works  for  the  conveyance  of  water,  or  into  the 
stream  wherefrom  the  same  were  diverted,  or  some  other 
stream,  ravine  or  water  course,  with  as  little  waste  or 


damage  to  other  proprietors  as  may  be;  Provided^  That 
such  tail-race  shall  not  be  so  constructed,  or  placed,  as 
to  convey  water  into  any  other  ditch,  conduit,  or  other 
works,,  save  by  the  consent  of  the  proprietors  the 
and  in  every  case  the  appropriator  next  in  priority 
taking  water  from  the  same  stream  or  source  of  supply, 
and  whose  ditch,  conduit  or  other  works  lie  belo.w  the 
place  of  discharge,  shall  be  entitled  to  have  such  waste 
water;  Provided,  further^  That  nothing  in  this  section 
contained  shall  be  so  construed,  nor  shall  this  section  be 
so  administered,  as  to  disturb  the  order  of  priorities 
among  the  appropriators,  or  so  as  to  effect  the  diversion 
into  the  works  of  one  appropriator  of  water,  to  the  use 
whereof  another  is  entitled. 

SEC.  9.  Any  person,  association  or  corporation,  who,, 
being  the  owner  of  or  controlling  any  ditch,  conduit  or 
other  works  for  diverting  water  from  any  natural  stream, 
shall  fail  or  neglect  to  construct  therein  such  head-gate 
for  excluding  the  water  therefrom  and  regulating  the 
flow  therein,  or  such  rating  flume  or  measuring  device  for 
rating  or  measuring  the  flow  of  water  therein  and  deter- 
mining the  capacity  thereof,  as  required  by  this  act,  or 
such  waste-gate  and  tail-race  when  thereunto  lawfully 
required  in  pursuance  hereof,  or  to  maintain  any  such 
structure  in  good  repair  and  condition,  or  to  renew  and 
replace  the  same  whenever  thereunto  required  by  the 
State  Engineer,  or  to  put  and  keep  upon  such  head-gate 
a  suitable  keyed  device  or  lock  to  the  satisfaction  of  the 
Water  Commissioner  upon  receiving  a  written  order 
from  the  Water  Commissioner  so  to  do,  or  to  deliver 
one  of  the  keys  thereof  to  the  Water  Commissioner 
upon  request,  shall  be  deemed  guilty  of  a  misdemeanor 
and  on  conviction  thereof  shall  pay  a  fine  of  not  less 
than  ten  dollars  and  not  exceeding  three  hundred  dol- 
lars, in  the  discretion  of  the  Court  wherein  conviction 
shall  be  had. 


PU  REPORT    OF  THE  COMMISSION 

Every  person,  association  or  corporation,  who  being 
convicted  of  any  such  offense,  shall  still  persist  in  such 
omission  or  refusal,  shall  pay  a  fine  of  five  dollars  for 
each  and  every  day  of  his  or  their  default  after  the 
period  of  ninety  days  next  succeeding  such  first  convic- 
tion. 

SEC.  10.  The  proprietors  of  any  ditch,  conduit  or 
other  works  for  diverting  the  water  of  any  natural 
stream  to  be  used  in  whole  or  in  part  for  the  irrigation 
of  lands  of  others,  shall  by  the  fifteenth  day  of  April 
in  each  year,  cause  such  ditch,  conduit,  or  other  works 
to  be  properly  and  suitably  cleaned  and  repaired,  so 
that  the  same  may  conveniently  carry  the  water  to  which 
the  consumers  of  water  therefrom  are  entitled,  and  such 
proprietors  shall  be  liable  for  all  damages  occasioned 
such  consumers  by  their  willful  or  negligent  failure  to 
comply  with  the  provisions  of  this  section. 

SEC.  ii.  If  the  proprietors  of. any  ditch,  conduit  or 
other  works  for  diverting  water  from  any  natural  stream, 
shall  fail  or  refuse  to  construct  therein  such  rating-flume 
or  measuring  device  for  a  period  of  thirty  days  after 
having  been  thereunto  lawfully  required  so  to  do  in 
pursuance  hereof,  the  Water  Commissioner  of  the  Water 
District  wherein  such  ditch,  conduit  or  other  works  may 
be  situate,  shall  close  the  head-gate  of  such  ditch,  con- 
pluit  or  other  works,  and  prevent  water  flowing  therein 
until  such  rating-flume  or  measuring  device  shall  have 
been  constructed  and  placed  in  such  works  to  the  satis- 
faction of  the  State  Engineer. 

If  the  proprietors  of  any  such  ditch,  conduit  or  other 
works  shall  construct  therein,  next  below  the  head-gate, 
a  waste-gate,  sand-gate  or  other  opening,  so  that  the 
whole  of  the  waters  of  such  works  may  be  discharged 
therefrom,  and  shall  place  therein  a  gate  which  may  be 
set  and  locked  in  like  manner  as  above  prescribed  in 
respect  of  the  head-gate,  and  shall  deliver  to  the  Water 
Commissioner  one  of  the  keys  of  such  waste-gate,  sand- 


CONCKKMNM,    TH  1C   WATERS  OF    THE    STATE.          .">  1 

gate  or  other  place  of  discharge,  then  and  in  such  case, 
tlu-  Water  Commissioner  in  lieu  of  closing  the  head- 
of  such  works,  may  open  and  lock  such  waste-gate, 
sand-gate  or  the  gate  of  such  other  place  of  discharge, 
so  as  to  waste  and  discharge  the  whole  of  the  waters 
diverted  by  such  ditch,  conduit  or  other  works,  and 
return  the  same  to  the  stream. 

SEC.  12.  If  the  proprietors  of  any  ditch,  conduit  or 
other  works  for  diverting  the  water  of  any  natural  stream 
shall  refuse  or  fail  to  erect  at  or  near  the  head  of  such 
ditch,  conduit  or  other  works  the  head-gate  required  by 
this  act,  or  to  maintain  the  same  in  good  order  as  hereby 
required,  the  Water  Commissioner  of  the  District  wherein 
such  ditch,  conduit  or  other  works  may  be  situate,  shall 
whenever  necessary  in  order  to  the  distribution  of  the 
waters  of  the  district  in  conformity  with  the  Statutes, 
exclude  the  water  of  such  stream  from  such  ditch,  con- 
duit or  other  works  by  filling  such  ditch,  conduit  or 
other  works  at  or  near  the  head  thereof,  or  by  cutting 
the  banks  thereof,  or  in  such  other  way  as  to  him  may 
seem  effective,  having  due  regard  to  the  cost  thereof; 
and  .the  reasonable  cost  of  such  filling  or  other  work, 
shall  be  paid  by  the  Board  of  Commissioners  of  the 
county  wherein  the  head  of  such  ditch,  conduit  or  other 
works  may  be  situate,  and  may  together  with  a  reason- 
able attorney's  fee,  to  be  fixed  by  the  Court,  be  recovered 
by  such  county  in  any  Court  of  competent  jurisdiction; 
and  the  judgment  of  the  Court  shall  be  a  lien  upon  and 
against  such  ditch,  conduit,  or  other  works  and  the 
appurtenances  thereof,  and  all  right  of  the  proprietors 
thereof,  to  carry  or  enjoy  the  waters  diverted  or  carried 
thereby,  and  shall  direct  the  sale  of  such  ditch,  conduit 
or  other  works,  and  the  right  of  the  proprietors  aforesaid 
in  satisfaction  thereof,  and  such  judgment  may  be 
enforced  by  special  execution  or  other  proper  process. 
No  such  sale  shall  divest  or  impair  the  right  of  any  per- 
son entitled  to  the  use  of  water  from  such  ditch,  conduit 


•V2  REPORT   OF  THE   COMMISSION 

or  other  works  by  agreement  with  or  license  from  the 
person  or  persons  so  in  default,  but  all  lawful  fees  and 
other  sums  of  money  payable  by  such  consumer  in 
respect  to  the  carriage  of  water  by  means  of  such  works 
shall  thereafter  be  payable  to  the  purchaser  at  such  sale. 

Every  such  sale  shall  be  made  as  a  sale  of  real  estate, 
and  redemption  therefrom  may  be  made  in  the  manner 
provided  by  law  in  case  of  land  sold  on  execution. 
Such  proprietors  so  in  default  shall  be  liable  for  all 
injury  and  damages  occasioned  any  consumer  of  water 
lawfully  entitled  thereto  from  such  ditch,  conduit  or 
other  works,  by  the  willful  or  negligent  failure  of  such 
proprietors  to  comply  with  the  provisions  of  this  act; 
and  if  any  person,  without  first  constructing  the  head- 
gate  therein,  as  required  by  this  act,  to  the  satisfaction 
of  the  Water  Commissioner,  shall  open  any  such  ditch, 
conduit  or  other  works  after  the  same  hath  been  filled  by 
the  Water  Commissioner  pursuant  hereto,  or  shall  repair 
or  replace  the  bank  thereof  where  the  same  hath  been 
cut  or  opened  by  the  Water  Commissioner,  or  turn  the 
water  into  such  ditch,  conduit  or  other  works  after  the 
same  hath  been  excluded  therefrom  by  the  Water  Qom- 
missioner  pursuant  hereto,  or  having  control  of  such 
ditch,  or  conduit,  shall  knowingly  permit  water  to  flow 
therein  after  the  same  hath  been  closed  or  the  water 
excluded  therefrom  by  the  Water  Commissioner  pur- 
suant hereto,  every  such  person  so  offending,  shall  be 
deemed  guilty  of  a  misdemeanor  and  shall  be  fined  in 
any  sum  not  exceeding  three  hundred  dollars,  or  impris- 
oned in  the  county  jail  not  exceeding  six  months  or 
punished  by  both  such  fine  and  imprisonment,  in  the 
discretion  of  the  Court  wherein  such  conviction  is  had. 

SEC.  13.  Any  person  who  shall  hereafter  cause  to  be 
excavated  or  constructed,  any  ditcn,  conduit,  reservoir 
or  other  works  for  the  conveyance,  collection  or  storage 
of  water,  shall  during  the  excavation  or  construction  of 
such  works,  keep  open  for  safe  and  convenient  travel, 


x« ,  THI-:  \VATi'i<>  <>F  THK  STA  . 

all  public  highways  theretofore  publicly  traveled  as 
such,  where  tlu-  same  are  crossed  by  such  works,  and 
shall  before  water  is  diverted  into,  conveyed  or  stored 
by  such  works,  so  as  to  extend  into  any  such  highway, 
construct  to  the  satisfaction  of  the  Road  Supervisor,  a 
substantial  bridge  not  less  than  fourteen  feet  in  breadth 
with  proper  and  sufficient  approaches  thereto,  over  such 
ditch  or  conduit,  or  the  waters  of  such  ditch,  conduit  or 
reservoir  which  may  exend  into  or  across  such  highway 
or  road.  Kverv  such  bridge  and  the  approaches  thereto 
shall  always  thereafter  be  maintained  by  the  county. 

Sue.  14.  If  any  person  thereunto  required  by  the 
preceding  section,  shall  in  any  case  fail,  refuse  or 
omit  to  construct  such  bridge  or  the  approaches  thereto, 
every  such  person  and  the  directors  and  managers  of 
any  corporation  delinquent  in  that  behalf,  shall  be  liable 
to  a  fine  of  not  exceeding  five  dollars  for  each  day  of 
such  default;  and  the  Supervisor  of  the  Road  District 
may  cause  such  bridge  to  be  constructed,  and  the 
reasonable  cost  thereof,  may,  together  with  a  reasonable 
attorney's  fee,  to  be  fixed  by  the  Court,  be  recovered  by 
the  county  in  any  Court  of  competent  jurisdiction,  and 
the  judgment  in  that  behalf  shall  be  a  lien  on  all  right 
of  the  person  in  default  in  such  ditch  or  other  works, 
and  may  be  enforced  in  the  manner  provided  in  section 
twelve  of  this  article. 

SEC.  15.  The  proprietors  of  every  ditch,  conduit  or 
other  works  for  conveying,  retaining  or  storing  waters, 
shall  always  maintain  in  good  order  and  repair  the 
embankment  and  all  appurtenances  thereof,  so  that  the 
water  conveyed,  retained  or  stored  thereby  may  not 
flood  or  damage  the  premises  of  others,  or  any  highway, 
or  unnecessarily  run  to  waste,  and  shall  be  liable  for  all 
damages  resulting  from  their  willful  or  negligent  failure 
to  comply  with  any  of  the  provisions  of  this  act,  or 
from  their  negligence  in  the  construction,  maintenance 
or  operation  of  such  works. 


54  REPORT   OF  THE   COMMISSION 

SEC.  16.  The  proprietors  of  every  ditch,  conduit  or 
other  works  for  conveying,  retaining  or  storing  water, 
shall  permit  the  State  Engineer,  or  any  person  appointed 
for  the  purpose  by  the  State  Engineer,  or  by  order  of 
the  District  Court,  whereunto  by  this  act  is  committed 
jurisdiction  for  settling  and  adjudicating  the  rights  and 
priorities  among  the  appropriators  of  water  in  the  Water 
Division  to  at  any  time  measure  and  rate  such  ditch, 
canal  or  other  works.  Every  such  order  of  appoint- 
ment shall  specify  the  ditch,  conduit,  reservoir  or  other 
works  to  be  measured  or  rated,  and  the  times  within 
which  such  measurement  may  be  made  and  the  name 
of  the  person  appointed,  and  shall  be  certified  under  the 
seal  of  the  State  Engineer,  or  the  seal  of  such  District 
Court.  Whenever  there  shall  be  presented  to  the  Water 
Commissioner  of  any  Water  District  the  order  of  the 
State  Engineer  or  of  any  District  Court,  duly  certified, 
as  in  this  section  above  provided,  directing  the  measur- 
ing and  rating  of  any  ditch,  conduit  or  other  works  in 
his  district,  or  whenever  the  proprietors  of  any  such 
ditch,  conduit  or  other  works  shall  request  of  any  Water 
Commissioner  permission  to  fill  such  works  for  the  pur- 
pose of  measuring  *and  rating  the  same  in  pursuance  of 
the  law,  such  Water  Commissioner,  notwithstanding 
anything  in  this  act  contained,  shall  cause  orpermit  the 
head-gate  of  the  ditch,  conduit,  reservoir  or  other  works 
to  be  raised,  and  such  ditch,  conduit  or  reservoir,  or 
other  works  to  be  filled,  and  so  remain  filled  for  a  length 
of  time  sufficient  to  conveniently  measure  and  rate  the 
same;  Provided,  however,  That  the  Water  Commis- 
sioner shall  not  cause  any  such  works  to  be  filled  at 
request  of  the  proprietors  thereof  without  the  order  of 
the  State  Engineer  or  the  District  Court  aforesaid,  when 
it  shall  seem  to  him  unnecessarily  injurious  to  others 
to  comply  with  such  request.  The  Superintendent  and 
Manager  of  such  works  shall  always  on  request,  to  the 
best  of  his  ability,  render  assistance  to  such  person 
named  in  such  order  of  the  State  Engineer  or  such 


o  >XCKRNIN<;  Tin-    \VATI-KS  OF  THI-:  STA1 

District  Court,  in  and  about  the  measuring  and  ratir. 
such  works  by  admitting  water  into  such  ditch,  conduit 
or  works  to  the  full  capacity  thereof  if  practicable,  or 
by  discharging  the  water  out  of  such  reservoir  or  other 
works  of  storage,  when  the  same  can  be  conveniently 
done  without  material  loss  to  the  proprietors  or  others, 
and  by  all  other  means  in  his  power. 

SEC.  17.  The  proprietor  of  any  fence,  which  crosses 
or  abuts  upon  any  stream  from  which  waters  are  drawn 
for  irrigation  or  other  purpose,  or  which  abuts  upon,  or 
wholly  or  in  part  encloses  any  reservoir  for  the  col- 
lection, retention  or  storage  of  water,  shall  cause  to  be 
placed  in  every  such  fence  in  some  convenient  place 
approved  by  the  Water  Commissioner,  a  gate  or  bar- 
way,  and  shall  always  maintain  the  same  to  the  satis- 
faction of  the  Water  Commissioner,  and  such  pro- 
prietor, and  the  proprietors  of  lands  shall  always 
suffer  and  permit  the  State  Engineer,  his  assistants, 
Deputy  Irrigation  Engineers,  the  Superintendent  of 
Irrigation  and  the  Water  Commissioner,  and  their 
assistants,  to  pass  thereat  and  along  the  bank  of  such 
stream,  or  to  such  reservoir  over  the  premises  of  such 
proprietor  by  some  reasonably  direct  and  convenient 
way,  for  any  lawful  purpose  connected  with  the  discharge 
of  their  official  duties.  Every  such  person  shall  forth- 
with upon  passing  through  any  such  gate  or  bar-way, 
carefully  close  such  gate  or  set  up  the  bars  of  such  bar- 
way,  and  shall  be  responsible  to  the  proprietors. of  such 
lands  for  any  damage  occasioned  by  his  default  in  that 
behalf. 

SEC.  1 8.  Every  person,  association  or  corporation 
hereafter  proposing  to  construct  or  enlarge  any  ditch, 
conduit  or  other  works  for  the  diversion  of  water  from 
any  natural  stream,  or  for  the  purpose  of  collecting  or 
utilizing  the  waters  wasting  or  seeping  from  any  other 
works,  or  any  dam,  dyke  or  embankment  for  collecting, 
retaining  or  storing  the  waters  of  any  stream,  valley, 


f)<l  REPORT   OF   THE   COMMISSION 

ravine  or  water-shed,  or  any  such  waste  or  seepage 
water,  shall  within  ninety  days  after  the  commencement 
of  such  construction  or  enlargement,  file  in  the  office  of 
the  State  Engineer  and  in  the  office  of  the  County  Clerk 
and  Recorder  of  each  county  wherein  any  part  of  the 
said  works  is  proposed  to  be  constructed,  a  map  showing 
with  reference  to  the  lines  of  the  public  surveys,  if  on 
surveyed  lands,  and  otherwise  with  reference  to  con- 
spicuous and  permanent  natural  monuments,  the  point  of 
diversion,  or  head  of  such  ditch,  conduit  or  other  works, 
the  route  of  such  ditch  or  conduit  and  all  feeders  thereof, 
and  the  site  of  all  such  dams,  dykes,  embankments 
and  other  works  of  storage,  so  as  to  fix  with  reasonable 
certainty  the  place  of  such  structures.  Upon  or  attached 
to  such  map  shall  be  a  statement  showing  the  stream  or 
source  of  supply  from  which  water  is  proposed  to  be 
taken,  or  the  valley,  ravine  or  water-shed  wherefrom  or 
wherein  water  is  proposed  to  be  collected,  the  names  of 
all  persons  proposing  to  unite  in  such  construction  or 
enlargement,  or  in  case  of  a  corporation,  the  name  of 
such  corporation,  the  name  and  address  of  the  superin- 
tendent of  such  works,  the  depth,  width,  grade  and 
carrying  capacity  of  such  ditch,  conduit  or  other  works 
of  diversion  or  carriage  and  every  feeder  thereof,  the 
depth  of  water  proposed  to  be  carried  therein  at  full 
capacity,  the  form  and  area  of  the  cross-section  of 
water  to  be  carried  therein  at  full  capacity,  as  proposed 
to  be  constructed  or  enlarged,  the  capacity  of  every  such 
reservoir  or  other  works  of  retention  or  storage  when 
filled  to  high-water  mark,  the  average  depth  of  the  water 
in  such  works  of  collection  or  storage,  when  so  filled  to 
high- water  mark,  and  the  lands  to  be  covered  by  the 
waters  thereof,  the  time  of  the  commencement  of  the 
survey  for  such  work,  and  the  time  of  commencement 
of  the  actual  work  of  construction,  and  in  case  of  any 
proposed  enlargement  of  such  works,  the  increase  of 
capacity  to  be  obtained  by  such  enlargement. 


RNING  .»« 

SKC.  19.  Such  statement  shall  he  subscribed  by  the 
person  ur  by  some  officer  or  the  superintendent  of  the 
association  or  corporation  in  whose  behalf  the  same  is 
made,  and  affixed  thereto  shall  be  an  affidavit  of  such 
person  or  officer  that  such  map  and  statement  truthfully 
sets  forth  the  [purposes  of  such  person,  association  or 
corporation  touching  the  proposed  construction  or 
enlargement,  and  that  the  matters  of  fact  contained  in 
such  statement  are  true. 

SEC.  20.  Every  person  or  corporation  proposing  to 
construct  works  for  the  diversion,  conveyance  or  storage 
of  water,  upon  first  filing  in  the  office  of  the  State 
Engineer  a  map  of  such  proposed  works  and  descriptive 
statement  thereof  showing  the  same  matters  required  by 
the  eighteenth  section  of  this  article,  as  also  showing 
as  nearly  as  may  be  the  amount  and  character  of  the 
materials  proposed  to  be  moved  in  the  construction  of 
such  works,  and  any  other  matter  or  thing  proper  to  be 
considered  in  ascertaining  the  time  which  ought  reason- 
ably to  be  occupied  in  the  construction  of  such  works; 
and  upon  first  publishing  for  not  less  than  thirty  days 
consecutively  in  at  least  one  daily  newspaper  printed  at 
the  seat  of  government  of  the -State,  and  at  least  one 
newspaper  in  each  county  wherein  such  works  are  pro- 
posed to  be  constructed,  a  notice  of  the  time  when 
application  will  be  made  to  the  State  Engineer  to  fix 
the  time  for  the  completion  of  such  works  and  the  appli- 
cation of  the  water  diverted,  collected  or  stored  by  such 
works,  may  apply  to  the  State  Engineer  to  fix  and  deter- 
mine the  reasonable  time  for  the  construction  of  such 
works,  and  the  application  of  the  waters  thereof  to  ben- 
eficial uses.  And  the  State  Engineer  upon  hearing 
such  person  or  corporation  and  all  persons  who  may 
attend  to  be  heard  touching  the  matter,  may  make  an 
order  fixing  a  reasonable  time  within  which  such  works 
shall  be  completed,  and  a  further  reasonable  time  within 
which  the  waters  thereof  shall  be  applied  to  beneficial 


;>S  REPORT   OF  THE   COMMISSION  f 

uses,  in  order  to  entitle  the  proprietors  thereof  to  priority 
as  of  the  date  of  commencement  of  the  work  upon  such 
structure.  Before  making  such  order,  the  State  Engi- 
neer may,  if  he  shall  see  fit,  visit  the  site  proposed  for 
such  works  and  make  personal  observation  thereof  and 
of  the  region  proposed  to  be  irrigated  therefrom. 

Every  such  order  shall  be  entered  of  record  by  the 
State  Engineer  and  a  copy  thereof  delivered  to  the  per- 
sons applying  therefor,  and  if  such  works  shall  be  com- 
pleted within  the  time  therein  specified,  and  the  waters 
diverted,  collected  or  stored  by  means  of  such  works, 
shall  be  applied  to  beneficial  uses  within  the  time  speci- 
fied in  such  order,  the  proprietors  of  such  works  shall 
be  deemed  entitled  to  priority  as  of  the  date  of  com- 
mencing the  structure,  which  shall  be  the  date  of  com- 
mencement of  the  survey,  if  conducted  with  reasonable 
diligence.  Nothing  herein  contained  shall  be  construed 
to  exempt  the  persons  or  corporations  constructing  such 
works  from  proceeding  with  reasonable  diligence  with 
the  work  of  construction;  and  the  State  Engineer  may, 
if  it  shall  appear  to  him  at  any  time  that  any  such  per- 
sons or  corporations  have  abandoned  the  proposed  work 
or  are  refusing  or  failing  to  proceed  with  the  construc- 
tion thereof  with  reasonable  diligence,  revoke  his  said 
order  in  that  behalf;  subject,  howsoever,  to  the  right  of 
the  proprietors  of  such  works  to  apply  to  him  for  re- 
hearing in  the  matter  of  the  order  of  revocation  or  to" 
appeal  to  the  Courts  for  relief  against  the  same. 


ARTICLE   V. 

OF  THE  ADMINISTRATION  OF    THE  WATERS  OF    THE   STATE  AND 
THE  OFFICERS  APPOINTED   THEREFOR. 

SECTION  i.  As  soon  as  may  be  after  the  convening 
of  the  General  Assembly  at  the  ninth  regular  session 
thereof,  and  each  alternate  session  thereafter,  there  shall 
be  appointed  by  the  Governor,  by  and  with  the  advice 


•m:   WATERS  <>i'  THI-:  BTAT]         .>'.» 

of  the  Senate,  a  State  Engineer,  who  shall  h<4d  his 
office  for  the  term  of  four  years,  and  until  his  successor 
is  appointed  and  qualified.  No  person  shall  be  appointed 
iid  office  unless  of  known  learning  in  the  science  of 
engineering,  and  of  skill  and  experience  in  the  practice 
thereof.  The  Governor  may  at  any  time  in  his  discre- 
tion, for  cause  shown,  remove  the  State  Engineer,  and 
in  case  of  such  removal,  or  the  death  or  resignation  of 
the  incumbent,  appoint  a  successor. 

SEC.  2.  The  State  Engineer  before  entering  upon  the 
duties  of  his  office,  shall  take  and  subscribe  the  oath  of 
office  prescribed  by  the  Constitution,  and  shall  file  the 
same  in  the  office  of  the  Secretary  of  State,  together 
with  his  bond  with  one  or  more  sureties  approved  by 
the  Secretary  of  State,  payable  to  the  State  in  the  penal 
sum  of  ten  thousand  dollars,  and  conditioned  for  the 
faithful  performance  of  the  duties  of  his  office,  and  that 
he  will  well  and  truly  account  for  and  pay  over,  accord- 
ing to  law  all  public  moneys  which  may  come  to  his 
hands,  and  deliver  to  his  successor  or  other  officer, 
authorized  by  the  Governor  to  receive  the  same,  all 
moneys,  books,  instruments  and  other  property  belong- 
ing to  the  State  in  his  possession,  or  with  which  he  may 
be  legally  chargeable. 

SEC.  3.  The  State  Engineer  shall  have  his  office  at 
the  seat  of  government  in  suitable  rooms  to  be  provided 
for  him  by  the  Secretary  of  State,  who  shall  also  provide 
suitable  furniture  therefor,  and  such  proper  and  neces- 
sary instruments,  books,  stationer}7  and  postage  as  may 
be  required  to  enable  him  to  conveniently  and  efficiently 
discharge  the  duties  of  his  office. 

SEC.  4.  The  State  Engineer  shall  have  a  seal  which 
shall  be  provided  by  the  Secretary  of  State,  and  shall 
attest  therewith  all  orders  and  certificates  issued  from 
his  office. 


60  REPORT   OF   THE   COMMISSION   § 

SEC.  5.  The  seal  of  the  State  Engineer  shall  be  a 
disc,  one  and  a- half  inches  in  diameter,  bearing  in  the 
center  thereof  a  sheaf  of  wheat,  and  inscribed  upon  the 
circumference  thereof  the  words,  "State  Engineer, 
Colorado." 

SEC.  6.  Any  person  who  shall  forge,  deface  or 
counterfeit  such  seal  or  affix  any  forged,  corrupt  or 
counterfeit  similitude  or  imitation  thereof  to  any  writing 
or  document  whatsoever,  or  who  shall  illegally  use  or 
affix  such  genuine  seal  to  any  writing  or  document 
whatsoever,  or  who  having  in  his  or  her  possession  or 
custody  any  writing  or  document  whatsoever  to  which 
such  forged,  corrupt  and  counterfeit  imitation  of  such 
seal  shall  have  been  affixed,  or  any  writing  or  document 
to  which  the  genuine  seal  shall  have  been  illegally 
affixed,  shall,  knowingly  publish,  utter,  use  or  present 
as  true  and  genuine  any  such  writing  or  document,  or 
who  having  in  his  or  her  custody  or  possession,  any 
such  forged,  corrupt  or  counterfeit  seal  or  document, 
shall  wilfully  conceal  the  same,  shall  upon  conviction 
thereof  be  punished  at  hard  labor  in  the  penitentiary  for 
the  term  of  not  less  than  one  year  or  more  than  ten 
years  in  the  discretion  of  the  Court  wherein  conviction 
shall  be  had. 

SEC.  7.  The  State  Engineer  shall  receive  a  salary  of 
four  thousand  dollars  per  annum,  which  shall  be  paid 
monthly  by  the  State  Treasurer  on  warrants  drawn  by 
the  Auditor  of  State,  together  with  his  reasonable  trav- 
eling expenses  necessarily  incurred  in  the  discharge  of 
the  duties  of  his  office. 

SEC.  8.  He  shall  keep  in  his  office  a  just  and  true 
account  of  all  such  expenses  and  all  expenditures  by 
him  made  in  the  discharge  of  his  office,  and  upon  his 
certificate  showing  particularly  the  time  and  occasion 
thereof,  and  on  what  account  such  expenditure  was 
made,  the  Auditor  of  State  shall  issue  his  warrant  upon 
the  State  Treasurer  for  the  amount  by  him  allowed  in 


CON 

respect  thereof,  which  sliall  be  paid  out  of  the  appro- 
priation lor  the  purpose,  and  not  otherwise;  and  the 
salary  or  per  diem  and  expenses  of  all  assistants  and 
the  pav  of  all  clerks  an^  laborers  and  other  nece- 
expenses  of  his  office  shall  be  allowed  and  paid  in  the 
same  manner  out  of  such  appropriation. 

SKC.  9.  He  shall  have  power  to  purchase,  in  the 
name  of  the  State  such  material  as  may  be  necessary  for 
constructing,  maintaining  and  repairing  gauging  sta- 
tions, at  the  streams  required  to  be  measured  and  gauged 
in  pursuance  of  this  act,  and  may  sell  and  dispose  of 
any  such  material  in  his  discretion,  when  no  longer 
needed. 

SEC.  10.  The  State  Engineer  shall  have  general 
control  of  the  survey  and  measurement  of  the  streams 
of  the  State  and  of  all  works  constructed  for  the  diver- 
sion, retention  or  storage  of  waters,  and  of  the  distribu- 
tion of  water  in  the  different  Water  Divisions  and  Water 
Districts,  for  irrigation  and  other  purposes  whatsoever. 
He  may  require  of  the  Attorney  General  written  advice 
upon  any  question  of  public  interest  arising  under  the  laws 
of  the  State  touching  these  matters.  He  shall  keep  in 
his  office  proper  and  full  record  of  the  measurements, 
observations  and  calculations  made  by  himself  or  under 
his  directions,  and  shall  deliver  the  same,  together  with 
the  reports  of  his  Assistants  and  the  Superintendents  of 
Water  Divisions,  and  the  Water  Commissioners,  and 
Deputy  Irrigation  Engineers,  and  all  other  records, 
papers  and  properties,  pertaining  to  his  office,  to  his 
successor  in  office.  .  He  shall  during  the  irrigation  season 
or  for  such  longer  or  shorter  period  as  to  him  may  seem 
advisable  in  each  year,  cause  to  be  ascertained,  as  nearly 
as  may  be,  the  daily  mean  discharge  of  the  principal 
streams  of  the  State,  (commencing  with  those  most 
resorted  to  for  irrigation)  and  shall  cause  a  record  of 
such  daily  mean  discharge  to  be  kept  in  graphic  form, 
and  as  nearly  as  possible  posted  daily,  and  shall  keep 


<J2  REPORT  OF  THE   COMMISSION 

such  record  always  open  to  inspection  at  his  office  by 
those  desiring  to  examine  the  same.  He  shall  collect 
in  each  year  information  regarding  the  rain-fall  in  the 
different  drainage  basins  of  the  State  and,  at  the  proper 
seasons,  regarding  the  snow-fall  in  the  mountains,  for 
the  purpose  of  ascertaining  and  predicting  the  probable 
flow  of  water  in  the  streams  in  the  ensuing  season, 
and  shall  cause  such  information  or  the  tabulated  results 
thereof  to  be  furnished  from  time  to  time  to  the  news- 
papers of  the  State  for  publication.  He  shall  also  as 
far  as  practicable,  cause  to  be  collected,  information 
touching  all  such  other  matters  and  things  as  may  to 
him  seem  necessary  or  proper  to  be  known  for  ascertain- 
ing the  capacity  of  the  streams  and  water  courses  of 
the  State  for  supplying  the  needs  of  the  inhabitants 
thereof,  and  for  ascertaining  the  most  economical  and 
effectual  methods  of  conserving,  applying,  distributing 
and  using  such  waters;  shall  give  his  counsel  and  service 
whenever  requested  by  the  Governor  to  any  officer, 
Department  or  Institution  of  the  State,  touching  any 
matter  of  public  concern,  and  perform  such  other  duties 
as  may  be  required  of  him  from  time  to  time  by  law. 

SEC.  ii.  He  may  appoint  one  or  more  assistants, 
who  shall  be  known  as  Assistant  State  Engineers,  either 
to  act  generally  under  him  or  perform  any  particular 
service,  and  may  revoke  any  such  appointment  at  his 
pleasure.  The  State  Engineer  and  the  sureties  in  his 
official  bond  shall  be  responsible  for  all  defaults  and 
misconduct  of  all  such  assistants.  Every  such  appoint- 
ment and  the  revocation  thereof  and  every  appointment 
of  Deputy  Irrigation  Engineers,  and  every  revocation 
of  such  appointment,  shall  be  in  writing  under  the  sig- 
nature and  seal  of  the  State  Engineer,  and  a  copy 
thereof  shall  be  filed  in  the  office  of  the  Secretary  of 
State,  and  a  record  thereof  shall  be  preserved  in  the 
office  of  the  State  Engineer,  in  a  book  to  be  kept  by  him 
for  that  purpose.  Every  person  so  appointed  shall, 


tfCBRNING   Tin,   \v.\ 

before  entering  upon  the  duties  of  his  oilice,  subscribe 
and  cause  to  be  filed  with  the  State  Engineer,  the  oath 
prescribed  by  the  Constitution,  and  the  State  Engineer 
may  require  of  every  such  Assistant  State  Engineer 
such  bond  and  sureties  as  to  him  may  seem  fit. 


12.  The  pay  of  each  Assistant  State  Engineer 
shall  be  not  exceeding  ten  dollars  per  day  for  each  day 
employed,  together  with  his  actual  and  necessary 
expenses;  the  same  to  be  paid  from  the  appropriation 
made  for  the  purpose  on  the  certificate  of  the  State 
Engineer  as  above  specified. 

SEC.  13.  The  State  Engineer  and  all  and  singular, 
his  assistants  and  the  Deputy  Irrigation  Engineers,  shall 
in  all  calculations,  measurements,  records  and  reports, 
use  the  cubic  foot  per  second  of  time  as  the  unit  of 
measurement  of  flowing  water,  and  either  the  cubic  foot 
or  the  acre  foot  as  the  unit  of  measurement  of  volume. 
The  acre  foot  is  the  quantity  of  standing  water  which 
will  cover  one  acre  of  land  to  the  deph  of  one  foot,  and 
is  equivalent^  to  forty-three  thousand,  five  hundred  and 
sixty  cubic  feet. 

SEC.  14.  The  State  Engineer  shall  from  time  to 
time  after  the  passage  of  this  act,  appoint  all  fit  and 
proper  persons  who  may  apply  to  him  for  such  appoint- 
ment, as  Deputy  Irrigation  Engineers  of  the  State  of 
Colorado.  He  shall  subject  every  applicant  for  such 
appointment  to  examination  sufficient  to  ascertain  his 
qualifications  and  fitness  for  the  position,  and  shall  after 
any  such  appointment  revoke  the  same,  if  it  shall  seem 
to  him  that  the  appointee  is  incompetent  or  unqualified 
for  the  discharge  of  the  duties  of  his  office,  or  has  been 
guilty  of  corruption,  extortion,  unfairness  or  oppression 
therein. 

SEC.  15.  Every  such  Deputy  Irrigation  Engineer 
shall,  before  entering  upon  the  duties  of  his  office,  take 
and  cause  to  be  filed  in  the  office  of  the  State  Engineer 


<>4  REPORT   OK   THE   COMMISSION 

the  oath  prescribed  by  the  Constitution,  and  shall  file 
in  the  same  office  his  bond  to  the  State'of  Colorado  in 
the  penalty  of  two  thousand  dollars,  with  one  or  more 
sureties  satisfactory  to  the  State  Engineer,  and  condi- 
tioned for  the  faithful  discharge  of  the  duties  of  his  said 
office  without  favor,  partiality  or  oppression. 

SEC.  1 6.  Every  such  Deputy  Irrigation  Engineer 
shall  have  such  authority,  and  perform  such  duties  as 
may  be  prescribed  by  law,  and  shall  on  request  of  the 
proprietor  or  superintendent  or  manager  thereof,  and  on 
payment  of  his  reasonable  charges  in  that  behalf,  rate, 
measure  and  ascertain  the  carrying  capacity  of  any 
ditch,  conduit,  lateral  or  feeder,  or  any  enlargement 
thereof,  and  the  capacity  of  any  reservoir  or  other  works 
for  the  conveyance  or  storage  of  water,  and  shall  make 
and  deliver  to  the  person  so  employing  him  one  or  more 
certificates,  as  such  person  may  require,  setting  forth 
the  fact  of  such  measurement  and  rating,  and  the  time 
and  circumstances  thereof,  and  the  capacity  of  such 
ditch,  canal  or  other  works  as  so  ascertained,  verified  as 
hereby  required.  The  State  Engineer  may  at  any  time 
direct  the  measurement  and  rating  of  any  such  works. 
Any  Assistant  State  Engineer  or  Deputy  Irrigation 
Engineer  rating,  measuring  or  estimating  the  carrying 
capacity  of  any  ditch,  conduit,  lateral,  feeder,  reservoir 
or  other  works  for  the  conveyance  or  storage  of  water 
shall  affix  to  the  certificate  of  such  measurement,  rating 
or  estimate  of  capacity,  his  affidavit  setting  forth  that 
such  measurement  and  rating  was  made  by  him,  or  such 
estimate  of  capacity,  by  himself  and  the  other  persons 
in  that  behalf  named  in  such  affidavit,  the  time  thereof, 
and  that  the  same  truly  sets  forth  the  capacity  of  such 
ditch,  conduit,  lateral,  feeder,  reservoir  or  other  works,  as 
he  verily  believes.  And  any  Assistant' State  Engineer  or 
Deputy  Irrigation  Engineer  who  shall  knowingly  make 
any  false  certificate  touching  any  measurement,  rating 
or  estimate  of  capacity  of  any  such  works,  or  touching 


CONCERNING   THE   WATER! 

any  Mirvev  of  any  such  works  or  the  notes,  ]>lat  or  ma}) 
I  hereof,  required  by  this  act,  shall  be  deemed  guilty  of 
a  misdemeanor  and  be  subject  to  a  fine  of  not  less  than 
one  hundred  dollars  nor  more  than  one  thousand  dollars 
in  the  discretion  of  the  Court  wherein  he  is  convicted. 
And  if  any  such  Assistant  State  Engineer  or  Deputy 
Irrigation  Engineer  shall  knowingly  swear  falsely  in 
any  such  certificate  of  measurement,  rating  or  estimate 
of  capacity,  or  in  his  certificate  touching  any  survey  of 
any  such  work  he  shall  be  deemed  guilty  of  perjury  and 
punished  accordingly. 

SEC.  17.  The  Governor  shall  appoint  some  fit  person 
as  Superintendent  of  Irrigation  in  and  for  each  of  the 
Water  Divisions  of  the  State.  Every  such  Superin- 
tendent shall  be  a  resident  of  the  Wat£r  Division  for 
which  he  is  appointed,  and  shall  hold  office  for  the 
period  of  two  years  from  the  day  of  his  appointment, 
and  until  his  successor  be  appointed  and  qualified,  unless 
sooner  removed;  Provided,  That  the  first  appointment 
of  Superintendent  of  Irrigation  in  any  Water  Division 
shall  not  be  made  until  the  Governor  shall  think  such 
appointment  expedient  and  necessary;  and  in  case  of 
vacancy  in  said  office  in  any  Water  Division  the  Gov- 
ernor shall  not  be  required  to  fill  such  vacancy  if  he 
shall  deem  it  inexpedient  so  to  do. 

SEC.  18.  Every  person  appointed  as  Superintendent 
of  Irrigation  shall,  within  thirty  days  after  his  appoint- 
ment and  before  entering  upon  the  duties  of  his  office, 
file  in  the  office  of  the  State  Engineer  the  oath  of  office 
prescribed  by  the  Contitution,  together  with  his  bond 
with  one  or  more  sureties,  approved  by  the  State  Engi- 
neer, payable  to  the  State  in  the  penalty  of  five  thousand 
dollars,  conditioned  for  the  faithful  discharge  of  the 
duties  of  his  office. 

SEC.  19.  He  shall  receive  a  compensation  of  five 
dollars  per  day  for  every  day  he  is  employed  in  the  dis- 
charge of  his  duties  hereunder,  together  with  his  reason- 


<)<)  REPORT   OF  THE   COMMISSION 

able  traveling  expenses.  He  shall  keep  a  just  and  true 
account  of  the  time  by  him  so  employed  and  of  such 
expenses,  setting  down  the  particulars  of  all  expendi- 
tures charged  for  by  him,  and  shall  render  such  account, 
verified  by  his  affidavit,  to  the  State  Engineer  monthly 
or  quarterly  as  he  may  elect;  and  such  per  diem  and 
expenses  shall  be  paid  ratably  by  the  several  counties 
wholly  or  in  part  included  within  such  Water  Division 
upon  the  allowance  and  apportionment  of  the  State 
Engineer.  The  State  Engineer  shall  not  allow  or 
approve  any  item  of  such  account  which  shall  appear  to 
him  manifestly  false  or  excessive. 

SEC.  20.  The  Superintendent  of  Irrigation  shall, 
within  the  Division  for  which  he  is  appointed,  have 
general  control  of  the  Water  Commissioners  within 
such  Division,  and  shall,  under  the  supervision  of  the 
State  Engineer,  execute  the  laws  of  the  State  relative 
to  the  distribution  of  water  in  accordance  with  the 
rights  and  priorities  of  appropriation  in  his  Division,  as 
the  same  are  or  may  be  established  by  judicial  decrees; 
and  perform  such  other  duties  as  may  be  prescribed  by 
law  or  by  the  State  Engineer  relative  to  the  same 
matters. 

SEC.  21.  The  Superintendent  of  Irrigation  shall, 
subject  to  the  approval  of  the  State  Engineer,  have 
authority  to  make  such  regulations  not  in  conflict  with 
this  act,  or  other  law  of  the  State,  as  to  him  may  seem 
necessary  or  proper  for  securing  in  his  Division  the 
equal  and  fair  distribution  of  water  among  those  entitled 
thereto  in  accordance  with  their  several  rights  and  prior- 
ities of  appropriation.  He  shall  have  authority  to  call 
out  the  Water  Commissioner  of  any  Water  District  in 
his  Division  at  any  time  he  may  deem  it  necessary.  In 
case  of  vacancy  in  the  office  of  Water  Commissioner, 
and  at  other  times  when  he  shall  deem  it  necessary,  he 
may  assume  and  discharge  any  of  the  duties  of  the 
Water  Commissioner,  for  any  District  of  his  Division. 


CONCF.RNINV,   TIN-    WATERS  oi-   Tin-    STATE.        <»7 

SKC.  22.  Any  person,  association  or  corporation  deem- 
ing himself,  themselves  or-  itself  | injured  or  discrimi- 
nated against  by  any  order  or  regulation  of  the  Superin- 
tendent  of  Irrigation  in  any  Water  Division,  may  appeal 
from  the  same  to  the  State  Engineer  by  filing  with  the 
State  Engineer  a  copy  of  the  order  or  regulation  com- 
plained of,  and  a  statement  of  the  manner  in  which  the 
same  injuriously  affects  the  person  appealing,  and  serv- 
ing upon  the  Superintendent  of  Irrigation  a  copy  of  such 
statement  and  a  written  notice  of  the  time  (not  less  than 
five  days  after  such  service)  when  such  appeal  will  be 
presented  to  the  State  Engineer.  The  State  Engineer 
may  in  his  discretion  adjourn  such  hearing  until  a  later 
day  to  enable  any  party  in  interest  to  produce  testimony 
touching  the  matter,  and  after  hearing  whatever  testi- 
mony may  be  produced  by  the  Superintendent  of  Irriga- 
tion, the  party  appealing  or  other  party  in  interest,  orally' 
or  by  way  of  deposition,  may  confirm,  suspend,  repeal  or 
modify  the  order  or  regulation  complained  of.  Upon 
the  hearing  of  such  appeal  or  any  other  hearing  before 
him  touching  any  issue  of  fact  in  respect  to  the  distribu- 
tion of  water,  the  State  Engineer  shall  have  power  to 
administer  oaths.  The  appellant  or  Superintendent  of 
Irrigation  or  any  party  in  interest,  may  cause  depositions 
to  be  taken  in  any  such  matter,  upon  first  giving  notice 
in  writing  to  the  adversary  parties,  of  the  time  and  place 
of  such  examination,  at  least  five  days  prior  to  the  time 
appointed  therefor.  The  State  Engineer  may  if  he 
shall  deem  it  necessary,  or  advisable,  visit  the  works  of 
the  parties  interested  before  determining  such  appeal,  or 
cause  the  same  to  be  visited  and  inspected  by  some 
Assistant  Engineer. 

SEC.  23.  The  Court  to  which,  by  this  act,  is  com- 
mitted jurisdiction  to  determine  the  rights  and  priorities 
of  the  appropriators  of  water  in  any  Water  Division  may, 
upon  complaint  of.  any  person  injured  by  the  action  of 
the  State  Engineer,  Superintendent  of  Irrigation  or  the 


68  REPORT   OF  THE   COMMISSION 

Water  Commissioner,  in  the  distribution  of  water,  give 
relief  against  the  same,  and  nothing  herein  contained 
shall  be  construed  to  deny  the  jurisdiction  of  such  Court 
in  that  behalf ;  Provided,  however,  That  no  injunction 
shall  be  allowed  against  the  State  Engineer,  the  Super- 
intendent of  Irrigation  or  any  Water  Commissioner  to 
restrain  them  or  either  of  them  from  doing  any  act  or 
thing  in  the  execution  of  his  office,  unless  notice  of  the 
time  and  place  of  the  application  therefor,  with  a  copy 
of  the  complaint  and  all  affidavits  proposed  to  be  used  in 
support  of  such  application,  shall  have  been  served  upon 
such  officer  at  least  six  days  prior  to  such  application. 
Every  person  claiming  to  be  interested  in  the  question 
shall,  on  his  application,  be  made  party  to  such  action. 
Costs  shall  not  be  taxed  against  the  officer  unless  he 
shall  appear  to  the  Court  to  have  been  guilty  of  malice) 
gross  neglect  of  duty,  or  willful  oppression.  The  Dis- 
trict Attorney  of  the  Judicial  District  wherein  the  said 
action  is  brought  shall  defend  all  such  officers,  and  his 
reasonable  fees  in  that  behalf  to  be  allowed  by  the  Court, 
shall  be  paid  by  such  county  or  counties  of  the  Water 
Division  as  the  Court  may  direct,  and  in  such  proportions 
as  may  be  fixed  by  order  of  the  Court. 

SEC.  24.  The  Superintendent  of  Irrigation  shall 
commence  the  discharge  of  his  duties  whenever  directed 
so  to  do  by  the  State  Engineer;  and  in  default  of  such 
direction,  as  soon  as  the  first  Water  Commissioner  in 
any  district  within  such  division  shall  be  called  out, 
otherwise  than  by  such  Superintendent  of  Irrigation; 
and  shall  continue  each  season  in  the  exercise  of  his 
office  so  long  as  the  services  of  any  Water  Commissioner 
within  his  division  are  required,  and  ten  days  thereafter, 
and  no  longer. 

SEC.  25.  Each  Water  Commissioner  when  called 
out  by  the  proprietors  of  canals,  ditches  or  other  works, 
shall  report  immediately  by  letter  or  telegram,  to  the 


CO]  KG   THE   \V\TKRS    OF  Tin-    BTATB,        <'>'.< 

Superintendent  of  Irrigation  for  his  Division,  and   shall 
also  report  when  liis  services  are  no  longer  needed. 

SKC.  .26.  There  shall  be  a  Water  Commissioner  in 
each  of  the  Water  Districts  of  the  State  who  shall  be 
appointed  by  the  ( Governor  from  among  the  persons 
recommended  to  him  by  the  State  Engineer.  He  shall 
a  resident  of  the  District  in  and  for  which  he  is 
appointed,  and  shall  hold  his  office  until  his  successor 
is  appointed  and  qualified.  He  shall  be  entitled  to  five 
dollars  per  day  for  each  day  during  which  he  shall  be 
actually  employed  in  the  duties  of  his  office.  He  shall 
keep  a  just  and  true  account  of  the  time  employed  by 
him  in  the  duties  of  his  office  and  render  a  true  state- 
ment of  the  time  so  employed,  verified  by  his  oath,  to 
the  State  Engineer,  monthly  or  quarterly  as  he  may 
elect,  and  the  same  shall  be  paid  by  the  counties  wholly 
or  in  part  included  within  such  Water  District,  in  such 
proportion  as  to  the  State  Engineer  shall  seem  equitable, 
upon  the  apportionment  and  allowance  of  the  State 
Engineer.  The  State  Engineer  shall  .not  approve  or 
allow  any  item  of  such  account  which  shall  appear  to 
him  manifestly  false  or  excessive. 

SEC.  27.  Whenever  the  Superintendent  of  Irriga- 
tion shall  recommend  the  appointment  of  an  assistant 
or  assistants  to  any  Water  Commissioner  in  his  Division, 
the  State  Engineer  shall,  on  request  and  nomination  of 
such  Water  Commissioner,  appoint  such  number  of 
assistants  to  such  Water  Commissioner  as  he  may  think 
necessary,  not  exceeding  the  number  recommended  by 
the  Superintendent  of  Irrigation.  Every  such  appoint- 
ment shall  be  in  writing  under  the  seal  of  the  State 
Engineer,  and  shall  specify  the  time  during  which  the 
same  shall  be  in  force,  and  a  record  thereof  shall  be  pre- 
served in  the  office  of  the  State  Engineer.  Such  assist- 
ant shall  take  the  oath  of  office  prescribed  by  the  Con- 
stitution, and  shall  in  all  things  touching  the  execution 
of  his  office,  obey  the  instructions  of  the  Water  Com- 


70  REPORT   OF  THE   COMMISSION 

missioner,  and  shall,  subject  to  such  instructions,  have 
and  exercise  all  the  powers  of  the  Water  Commissioner. 
He  shall  be  entitled  to  three  and  one-half  dollars  per 
day  for  each  day  during  which  he  is  necessarily  em- 
ployed, to  be  paid  by  the  several  counties  wholly  or  in 
part  within  such  Water  District,  upon  certificate  of  the 
Water  Commissioner,  and  the  approval,  apportionment 
and  allowance  thereof  by  the  State  Engineer,  in  the 
same  manner  as  provided  in  respect  of  the  Water  Com- 
missioner. 

SEC.  28.  The  Governor  shall  fill  all  vacancies  which 
may  be  occasioned  by  death,  resignation  or  otherwise^ 
in  the  office  of  the  Water  Commissioner  in  any  District. 
The  Governor  may  at  any  time  remove  any  Superin- 
tendent of  Irrigation  or  Water  Commissioner,  in  his 
discretion. 

SEC.  29.  Every  Water  Commissioner  shall,  before 
entering  upon  the  duties  of  his  office,  file  in  the  office 
of  the  State  Engineer  the  oath  of  office  required  by  the 
Constitution,  together  with  his  bond  in  such  sum  not 
less  than  one  thousand  nor  more  than  five  thousand 
dollars,  as  may  be  specified  by  the  State  Engineer,  with 
one  or  more  sureties  to  be  approved  by  the  State  En- 
gineer, payable  to  the  State  of  Colorado,  and  condi- 
tioned for  the  faithful  discharge  of  the  duties  of  his 
office. 

SEC.  30.  The  State  Engineer  shall  cause  to  be 
noted  in  a  book  to  be  kept  in  his  office  for  the  purpose, 
as  to  each  bond,  the  amount  thereof,  the  date  of  the 
approval  thereof,  the  names  of  the  principal  and  the 
several  sureties  therein.  A  copy  of  any  such  bond  cer- 
tified by  the  State  Engineer  under  his  seal  of  office  shall 
be  evidence  in  all  Courts  and  places. 

SEC.  31.  The  Water  Commissioners  shall  not  assume 
their  duties  until  called  thereunto  by  the  State  Engineer 
or  Superintendent  of  Irrigation  for  the  Division,  or  by 


C<  >N\  KKNINi  ,    Till'.    \V.\'l  i-.k^    <)i     Till'.  71 

the  Superintendents  of  two  or  more  ditches,  rondnit-. 
reservoirs  or  other  works  in  their  several  Districts  by 
application  in  writing,  stating  that  there  is  necessitv 
for  their  action.  Thcv  shall  not  be  entitled  to  compen- 
sation after  the  necessity  for  their  services  shall 

SEC.  32.  The  Superintendent  of  Irrigation  in  his 
Division,  and  every  Water  Commissioner  and  his  assist- 
ants in  their  several  Districts,  shall,  in  respect  to  the 
distribution  of  water  for  irrigation,  have  the  powers  of 
a  peace  officer,  and  shall  be  authorized  to  arrest,  with  or 
without  warrant,  any  person  who  shall  violate  any  law- 
ful order  by  him  made  in  the  administration  of  his 
office,  or  who  shall,  without  authority  of  the  State 
Engineer  or  the  Superintendent  of  Irrigation  for  the 
Division,  raise  or  open  the  head-gate  of  any  ditch,  con- 
duit or  other  works,  or  suffer  water  to  flow  in  such 
ditch,  conduit  or  other  works,  contrary  to  the  lawful 
orders  of  the  Water  Commissioner. 

SEC.  33.  As  soon  as  may  be  after  the  entry  of  any 
decree  hereafter  made  in  any  of  the  District  Courts  for 
adjudicating  the  rights  and  priorities  of  the  several 
appropriators  of  water  for  irrigation  in  any  Water 
Division,  and  within  thirty  days  at  tjie  furthest  after 
the  enUy  of  such  decree,  the  Clerk  of  such  Court  shall 
make,  certify  and  transmit  a  copy  of  the  same  to  the 
State  Engineer.  In  like  manner  whenever  afterwards 
any  modification  of  such  decree  shall  be  made,  or  any 
supplementary  decree  entered  in  the  same  cause,  or  any 
such  subsequent  decree  establishing  the  rights  of  any 
appropriator,  the  Clerk  of  the  Court  wherein  the  same 
is  made,  shall  certify  and  transmit  a  copy  thereof  to  the 
State  Engineer,  and  the  fees  of  the  Clerk  for  such  copy- 
shall  be  deemed  part  of  the  costs  in  the  case  and  be  paid 
in  like  manner  as  the  residue  of  such  costs. 

SEC.  34.  Whenever  any  decree  shall  be  made  in  any 
of  the  District  Courts  to  which  by  this  act  is  committed 
jurisdiction  to  settle  the  priorities  of  right  to  the  use  of 


i  '2  REPORT   OF   THE   COMMISSION. 

water  among  the  several  appropriators  of  water  in  any 
Water  Division,  and  a  certified  copy  thereof  filed  in  the 
office  of  the  State  Engineer,  as  by  this  act  provided,  the 
State  Engineer  shall  cause  to  be  prepared  and  always  to 
be  kept  in  his  office,  a  book  entitled:  "A  Register  of 
Priorities  of  Appropriations  of  Water  for  Water  Division 

Number ,"  and  shall  cause  to  be  entered  therein  and 

preserved  all  such  copies  of  decrees,  and  shall  as  soon  as 
may  be  thereafter  prepare  from  such  decrees  a  table  of 
the  ditches,  conduits,  reservoirs  and  other  works  for  the 
appropriation  of  water  for  irrigation  within  such  Divis- 
ion, arranging  the  same  in  consecutive  order  according 
to  the  priorities  of  the  respective  appropriations  within 
such  Division.  Such  table  shall  contain  the  following 
information  arranged  in  separate  columns:  The  name 
of  the  ditch,  conduit,  reservoir  or  other  works;  the 
Water  District  in  which  the  same  is  situated ;  the  stream 
or  source  wherefrom  water  is  thereby  diverted;  the 
name  of  the  person,  association  or  corporation  controll- 
ing the  same;  and  the  name  and  post-office  address  of 
the  Superintendent  upon  whom,  as  provided  by  this  act, 
notice  in  respect  of  the  said  works  is  to  be  served;  the 
number  of  cubic  feet  of  water  per  second,  or,  in  the  case 
of  storage  works,  of  acre  feet,  to  which  the  proprietors 
thereof  are  thereby  entitled,  (the  original  appropriation 
and  each  enlargement  being  stated  separately  and  in 
their  proper  order  and  place,  according  to  the  dates  of 
appropriation) ;  the  total  number  of  cubic  feet  per  second 
of  water  previously  appropriated,  to  be  carried  in  ditches 
or  conduits,  and  the  number  of  acre  feet  previously 
appropriated  for  storage  for  irrigation  in  such  Water 
Division;  the  number  of  cubic  feet  of  water  ;per  second 
previously  appropriated  to  be  carried  in  ditches  or  con- 
duits, and  the  number  of  acre  feet  appropriated  for  stor- 
age for  irrigation  in  the  Water  District  wherein  such 
ditch,  conduit  or  other  works  may  be  situate;  and  such 
other  and  further  information  as  to  the  State  Engineer 
ma}-  seem  useful  or  necessary  to  enable  the  Superintend- 


CONCERNING   Tin-:   \VATI-K  HE  STATB.        7:; 

nits  of  Irrigation  to  make  proper  distribution  of  the 
waters  of  such  Division  according  to  such  decree;  and  in 
case  any  decree  shall  be  afterwards  entered  amendatory 
or  supplementary  to  such  decree,  or  any  decree  estab- 
lishing the  right  of  any  person  or  corporation  not  in 
such  first  decree  named,  to  the  use  of  water  for  irriga- 
tion, or  any  decree  establishing  and  limiting  the  amount 
of  water  to  which  any  city  or  town  or  person  or  corpora- 
tion supplying  any  city  or  town  with  water  is  entitled, 
he  shall  cause  the  substance  thereof  to  be  entered  in 
such  table  in  proper  order  and  in  the  same  manner  afore- 
said, and  shall  forthwith  after  the  preparation  of  such 
table,  or  any  amendment  or  supplement  thereunto,  cause 
a  copy  thereof  certified  under  his  seal  of  office  to  be 
transmitted  to  the  Superintendent  of  Irrigation  for  the 
proper  Division  within  which  such  decree  shall  have 
been  entered.  He  shall  also  in  like  manner  and  forth- 
with, or  as  soon  as  may  be,  after  the  receipt  of  the  certi- 
fied copy  of  any  such  decree,  cause  a  like  table  to  be  pre- 
pared for  each  Water  District  within  such  Water  Divis- 
ion, setting  forth  the  same  matters  in  respect  to  the 
several  ditches,  conduits,  reservoirs  and  other  works  in 
such  Water  District,  and  arranging  the  said  several 
appropriations  in  such  table,  set  down,  according  to 
their  several  respective  priorities  of  right  in  said  Water 
District,  and  shall  certify  and  transmit  a  copy  thereof 
and  of  each  amendment  or  supplement  thereunto  under 
his  seal  of  office  to  the  Water  Commissioner  of  such 
Water  District. 

SEC.  35.  The  Superintendent  of  Irrigation  of  each 
Division  and  the  Water  Commissioner  of  each  Water 
District  shall  carefully  preserve  the  said  tables  and 
return  the  same  to  the  State  Engineer  for  correction 
whenever  required  by  him,  and  always  at  the  end  of  the 
irrigation  season.  No  claim  of  priority  of  right  to  the 
use  or  enjoyment  of  water  for  irrigation  not  set  forth  in 
the  said  tables  shall  be  regarded  by  the  Superintendent 

10 


<4      •  REPORT   OF  THE   COMMISSION 

of  Irrigation  or  Water  Commissioner  in  the  distribution 
of  water;  and  until  all  persons  appearing  by  such  tables 
to  be  entitled  to  the  use  of  water  for  irrigation,  shall 
have  received  the  full  amount  to  which,  by  such  tables, 
they  severally  appear  entitled,  no  other  person  shall  be 
permitted  to  have,  take  or  receive  any  water  which 
might  flow  into  the  ditches,  canals  or  other  works  set 
down  in  such  tables;  Provided,  however,  That  nothing 
herein  contained  shall  be  so  construed  as  to  require  the 
Superintendent  of  Irrigation  or  Water  Commissioner 
to  deliver  to  or  suffer  to  flow  into  any  ditch,  conduit  or 
other  works,  water  manifestly  in  excess  of  the  needs  of 
the  proprietors  of  such  works  or  those  entitled  to  the 
waters  thereof,  nor  water  to  which  by  virtue  of  any 
agreement  made  in  pursuance  of  the  eleventh  Article  the 
proprietors  of  any  other  works  are  entitled. 

SEC.  36.  They  shall  cause  the  waters  of  the  several 
streams  and  sources  of  supply  in  their  respective  divis- 
ions and  districts  to  be  distributed  among  the  several 
ditches,  conduits  and  other  works  in  the  said  Water 
Divisions  and  Districts,  respectively,  in  accordance  with 
the  said  table  as  nearly  as  maybe  so  that  the  proprietors 
of  each  of  the  said  ditches,  conduits  or  reservoirs,  and 
those  entitled  to  water  therefrom,  shall,  as  nearly  as  may 
be,  and  to  the  extent  of  their  needs,  at  all  times  receive 
and  enjoy  the  waters  to  which,  as  appears  by  the  said 
table,  they  are  severally  entitled,  and  whenever  it  shall 
appear  to  any  Superintendent  of  Irrigation  or  Water 
Commissioner  that  there  is  flowing  into  any  ditch,  con- 
duit, reservoir  or  other  works,  water  to  which  the  pro- 
prietor of  any  ditch,  conduit,  reservoir  or  other  works, 
having  a  prior  right  according  .to  the  said  table,  is 
entitled,  and  that  such  ditch,  conduit,  reservoir  or  other 
works  having  priority  of  right  is  not  receiving  the 
supply  of  water  necessary  for  the  consumers  of  water 
therefrom,  and  which,  according  to  the  said  table,  ought 
to  flow  to  the  same,  he  shall  at  once*  cause  the  head- 


KNINV,     Till-     WATHKS    (>!•    Till',    STATI-.          7.") 

gate  of  such  ditch,  conduit  or  other  works,  having  the 
excess,  to  be  closed  so  that  a  sufficient  amount  of  the 
water  of  such  stream  or  source  of  supply  may  pass  and 
flow  to  the  ditch,  conduit  or  other  works  having  the 
priority  of  right  to  the  amount  to  which  according  to 
such  table  the  same  is  entitled;  Provided,  however, 
That  the  Superintendent  of  Irrigation  or  the  Water 
Commissioner  shall  not  cause  any  head-gate  to  be  closed 
unless  thereby  the  water  may  be  given  to  some  ditch, 
canal  or  other  works  having  priority  of  right. 

SEC.  37.  Each  of  the  Water  Commissioners  shall, 
whenever  required  thereunto  by  the  Superintendent  of 
Irrigation,  and  as  often  as  practical,  and  at  least  once  in 
each  week  during  the  irrigating  season,  report  to  the 
Superintendent  of  Irrigation  of  the  Division  touching 
the  following  matters:  The  total  amount  of  water 
necessary  for  the  irrigation  of  land  actually  cultivated 
in  the  said  Water  District;  the  amount  of  water  at  the 
time  flowing  into  said  District  and  whether  such  flow  of 
water  is  increasing  or  decreasing;  the  ditch  latest  in 
priority  which,  if  distributed  according  to  the  date  of 
their  priorities  of  right  as  set  down  in  the  tables  afore- 
said such  amount  of  water  will^  suffice  to  supply;  the 
ditch  latest  in  priority  of  right  at  that  time  receiving 
water  and  the  amount  which  it  is  at  that  time  receiving; 
the  amount  of  water  flowing  out  of  the  said  District  into 
the  District  next  below  the  same;  at  what  time  and 
place  next  thereafter  such  Water  Commissioner  can 
receive  instructions  from  the  Superintendent  of  Irriga- 
tion, also  touching  any  other  matter  upon  which  the 
Superintendent  of  Irrigation  may  require  a  report;  Pro- 
vide d^  however,  That  the  Water  Commissioner  shall  not 
be  required,  in  order  to  ascertain  or  report  touching  any 
of  these  matters,  to  abandon  or  neglect  other  matters 
which  shall  seem  to  him  to  be  of  more  importance  unless 
by  express  direction  of  the  Superintendent  of  Irrigation. 


<<>  REPORT   OF  THE   COMMISSION 

SEC.  38.  The  Superintendent  of  Irrigation  shall  file 
and  carefully  preserve  all  such  reports,  and  forthwith 
after  the  receipt  of  any  such  report  he  shall  carefully 
examine  the  same  and  shall  therefrom  ascertain  what 
ditches,  conduits  or  reservoirs  in  his  Water  Division  are 
and  what  are  not,  receiving  the  supply  of  water  to 
which  they  are  severally  entitled,  and  whenever  it  shall 
appear  therefrom,  or  otherwise  to  his  satisfaction,  that 
any  ditch,  conduit,  reservoir  or  other  works,  within 
such  Water  Division,  is  receiving  any  excess  of  water 
over  and  above  the  amount  to  which  it  is  entitled  under 
the  decree  of  the  District  Court,  and  any  ditch,  conduit 
or  reservoir  in  any  other  Water  District,  senior  in  pri- 
ority thereto,  is  not  receiving  the  full  amount  to  which 
it  is  entitled,  he  shall  forthwith,  (by  telegram  if  he  shall 
deem  it  necessary)  direct  the  Water  Commissioner  of 
the  Division  wherein  such  ditch,  conduit,  reservoir  or 
other  works,  so  receiving  the  excess  may  be  situate,  to 
close  down  the  head-gate  of  such  works,  so  as  to  allow 
such  excess  to  flow  to  the  ditches,  conduits,  reser- 
voirs or  other  works  which  are  the  seniors  in  priority; 
Provided,  however,  That  the  Superintendent  of  Irriga- 
tion shall  not  be  required  to  direct  the  closing  of  any 
head-gate  where  water  can  not  thereby  be  given  to  the 
works  having  priority  of  right,  the  supply  of  which  is 
insufficient 

SEC.  39.  Until  decrees  shall  be  rendered  in  pursu- 
ance of  this  act  for  adjudicating  the  rights  and  priorities 
to  the  use  of  water  for  irrigation  among  the  several 
appropriators  in  any  Water  Division,  distribution  shall 
be  made  as  nearly  as  may  be  according  to  the  decrees 
heretofore  rendered  in  the  several  Water  Districts  having 
regard  to  the  dates  of  the  several  appropriations  within 
the  Division,  and  without  regard  to  the  date  or  order  of 
the  several  appropriations  in  the  Water  District;  Pro- 
vided, however,  That  nothing  herein  contained  shall  be 
deemed  to  validate  any  such  decree,  or  make  the  same 


CONCKRNixr,  Tin-    \v  •  tf   THB   STAtE.        77 

obligatory  upon  or  against  those  entitled  to  the  use  of 
water  in  any  Water  District,  save  that  in  respect  whereof 
such  decree  was  rendered;  and  where  in  any  case  the 
proprietorsof  any  ditch, conduit  or  reservoir  named  in  any 
such  decree,  shall,  for  the  space  of  three  years  after  the 
entry  of  such  decree,  have  customarily  failed  to  take, 
use  and  enjoy  any  portion  of  the  waters  to  'which 
by  such  decree  they  appear  to  have  been  entitled,  the 
same  shall  be  deemed  to  have  been  abandoned;  and  not- 
withstanding any  such  decree,  such  portion  of  any 
waters  thereby  awarded  to  the  proprietors  of  any  ditch, 
conduit  or  reservoir,  not  used  and  enjoyed  for  the 
space  of  three  years  after  the  entry  of  such  decree,  shall 
be  distributed  to  the  subsequent  appropriators  according 
to  their  several  priorities  of  right  as  the  same  may  have 
been  or  shall  hereafter  be  established. 

SEC.  40.  Waters  appropriated  for  other  purposes 
than  the  irrigation  of  lands,  and  water  appropriated  for 
irrigation  in  any  Water  Division  wherein,  or  in  any 
Water  District  whereof,  no  decree  hath  been  entered  for 
settling  the  rights  and  priorities  of  the  appropriators  of 
water  for  irrigation,  and  waters  appropriated  for  irriga- 
tion in  any  Water  Division,  subsequent  to  the  appropri- 
ation last  in  priority  in  any  such  decree  mentioned, 
shall  be  distributed  by  the  Superintendents  of  Irrigation 
subject  to  the  orders  of  the  State  Engineer  as  the 
rights  of  the  several  appropriators  thereof  may  be  ascer- 
tained and  determined  by  the  State  Engineer  from  the 
best  information  accessible  to  him,  reserving,  howsover, 
to  every  person  aggrieved,  the  right  to  apply  for  relief 
to  the  District  Court  whereunto,  by  this  act,  is  commit- 
ted jurisdiction  for  settling  and  adjudicating  the  rights 
and  priorities  of  the  appropriators  of  water  in  such 
Water  Divisions. 

SEC.  41.  The  State  Engineer  by  the  first  day  of 
April  in  each  year  shall  cause  to  be  made  and  transmit- 
ted to  the  Superintendent  of  Irrigation  for  each  Water 


78  REPORT  OF  THE   COMMISSION 

Division,  duplicate  plats  showing  the  land  contained 
within  each  of  the  Water  Districts  in  such  Division 
according  to  the  public  land  surveys,  showing  also,  so 
far  as  the  information  in  his  office  permits,  the  several 
ditches,  conduits,  reservoirs  and  other  works  in  sucli 
Water  District,  devoted  to  the  irrigation  of  lands,  and 
the  location  of  the  several  towns  and  railways,  so  far  as 
the  same  can  be  ascertained.  One  copy  of  each  of  the 
said  plats,  the  Superintendent  of  Irrigation  shall  retain 
in  his  office  and  one  copy  thereof  he  shall  transmit  to 
the  Water  Commissioner  of  the  proper  District.  Each 
Water  Commissioner  shall  preserve  the  same  and  cause 
to  be  noted  thereon  all  corrections  therein  which  seem 
to  him  necessary  to  be  made,  all  ditches,  conduits, 
reservoirs  and  other  works  within  his  District  for  the 
irrigation  of  lands,  not  appearing  thereon,  all  such 
works  set  down  upon  such  plat  as  active  works,  which 
have  in  fact  been  abandoned,  or  the  waters  whereof  may 
have  been  turned  into  or  consolidated  with  those  of  any 
other  works,  and  all  other  matters  and  things  which 
may  be  required  by  the  State  Engineer  or  may  seem  to 
him  necessary  to  be  known  in  order  to  the  correction 
and  perfection  of  such  plat,  and  shall  return  the  same 
by  the  fifteenth  day  of  September  in  each  year  to  the 
Superintendent  of  Irrigation,  with  a  statement  of  all 
such  corrections  and  other  corrections  and  suggestions 
of  matters  of  importance  which  appear  to  him  nec- 
essary to  be  known  and  which  cannot  be  set  down 
on  the  plat.  The  Superintendent  of  Irrigation  shall 
forthwith  transmit  the  same  together  with  the  other 
copies  of  such  plats,  in  his  hands  remaining,  to  the 
State  Engineer,  together  with  like  corrections,  additions 
and  suggestions  which  may  appear  to  him  to  be  neces- 
sary or  proper  touching  any  Water  District. 

SEC.  42.  The  State  Engineer  shall,  in  each  year, 
transmit  to  the  Superintendent  of  Irrigation,  blanks  for 
the  reports  hereinafter  required. 


EtNING  THI-:  WATI-RS  <»F  T  IK.       7'.' 

C.  43.  The  Water  ConimissioiuT  of  <  urh  District 
shall,  at  such  time  as  may  be  fixed  by  the  State  Kngin- 

•:•  each  year,  make  his  report  to  the  Superintendent 
of  Irrigation,  setting  forth  with  reference  to  each  ditcli 
or  conduit  in  his  District,  the  following  particulars  for 
the  irrigating  season  last  past  or  then  current:  The 
number  of  days  during  which  water  was  carried;  the 

^e  amount  of  water  carried  in  cubic  feet  per  sec- 
ond; the  total  number  of  acres  irrigated  therefrom;  the 
number  of  acres  of  alfalfa,  native  grasses,  seeded  grasses, 
small  grains,  fruit  trees,  forest  trees,  and  other  products 
respectively,  irrigated  therefrom,  as  far  as  can  by  him 
be  conveniently  ascertained.  He  shall  also  set  forth  a 
full  account  of  his  official  doings  as  Water  Commissioner 
during  such  season,  and  the  number  of  days  by  him 
employed  therein,  and  suggest  any  defects,  uncertain- 
ties or  imperfections  in  the  law  or  the  administration  of 
the  waters  of  the  State,  which  seem  to  him  necessary  to 
be  corrected.  The  Superintendent  of  Irrigation  shall, 
at  such  time  as  may  be  fixed  by  the  State  Engineer, 
transmit  to  the  State  Engineer  all  such  reports  of  the 
several  Water  Commissioners  of  his  Division,  together 
with  his  opinion  thereon,  and  a  report  of  his  official 
doings  during  such  season,  and  like  suggestions  touch- 
ing the  law  and  the  administrationjthereof.  The  State 
Engineer  may  at  any  time  require  of  the  Water  Com- 
missioners and  Superintendents  of  Irrigation,  reports 
and  opinions  touching  any  other  matters  which  may 
seem  to  him  necessary  or  desirable  to  be  known  and 
practicable  for  such  Water  Commissioners  or  Superin- 
tendents of  Irrigation  to  ascertain.  Every  Water  Com- 
missioner and  Superintendent  of  Irrigation  shall  turn 
over  to  his  successor  in  office  all  plats,  instructions, 
tables  of  priorities,  keys  of  head-gates  and  other  prop- 
erties in  his  possession  pertaining  to  his  office,  and  in 
case  any  Water  Commissioner  shall  resign  and  quit  his 
office  before  the  appointment  of  his  successor,  he  shall 
deliver  the  same  to  the  Superintendent  of  Irrigation; 


80  REPORT   OF  THE   COMMISSION 

Provided,  however,  That  no  Water  Commissioner  shall 
quit  his  office  or  abandon  the  duties  thereof  without  the 
consent  of  the  State  Engineer,  until  his  successor  be 
appointed  and  qualified. 

SEC.  44.  The  State  Engineer  shall  carefully  pre- 
serve in  his  office  all  the  reports  of  the  Water  Commis- 
sioners and  Superintendents  of  Irrigation,  and  shall 
render  to  the  Governor,  at  least  thirty  days  previous  to 
the  convening  of  the  General  Assembly,  at  each  regular 
session,  reports  of  the  administration  of  his  office  dur- 
ing the  two  years  preceding,  setting  forth  all  such  mat- 
ters and  things  as  shall  to  him  seem  necessary  to  be 
submitted  to  the  General  Assembly  for  their  information, 
or  for  public  knowledge. 

SEC.  45.  The  proprietors  of  every  ditch,  conduit, 
reservoir  or  other  works,  for  the  diversion,  carrying  or 
storage  of  water  for  irrigation,  shall,  within  thirty  days 
after  the  approval  of  this  act,  cause  to  be  chosen  a  Sup- 
erintendent of  such  ditch,  conduit  or  other  works,  upon 
whom  may  be  served  processes  in  actions  wherein  may 
be  brought  in  question  the  right  of  such  ditch,  conduitr 
reservoir  or  other  works,  to  the  waters  appropriated, 
carried  or  stored  by  means  thereof,  and  all  notices 
required  by  this  act  to  be  served  upon  the  proprietors 
of  such  works  in  any  proceedings  for  the  adjudication 
of  the  rights  and  priorities  to  the  use  of  water,  among 
the  several  appropria.tors  of  the  Water  Division,  and  all- 
notices  from  the  State  Engineer  or  Superintendent  of 
Irrigation  or  the  Water  Commissioner,  touching  the. 
administration  of  such  works.  They  shall  forthwith 
cause  the  name  and  address  of  such  Superintendent  to 
be  certified  in  writing  to  the  State  Engineer,  who  shall 
preserve  the  same  and  forthwith  transmit  the  name  and 
address  of  such  Superintendent  to  the  Superintendent 
of  Irrigation  for  the  proper  Division.  The  Superin- 
tendent of  Irrigation  shall  transmit  the  name  and  ad- 
dress of  every  such  Superintendent  so  appointed  to  the 


/- 


CONCERNING    Till-     WATERS    <  H-    THI.    STATE.         >1 

Water  Commissioner  of  the  District  wherein  tin-  said 
ditches,  or  other  works,  shall  be  respectively  situated; 
and  UK-  Water  Commissioner  shall  preserve  in  his  office 
a  record  of  the  names  of  all  such  Superintendents  so 
appointed,  and  the  name  of  the  ditch,  conduit  or  other 
works  in  respect  of  which  each  appointment  is  made, 
and  shall  enter  therein  from  time  to  time  whenever  the 
same  shall  be  received,  all  changes  in  the  names  of  such 
Superintendents. 

SEC.  46.  In  case  of  the  death,  resignation  or  removal 
of  any  Superintendent  from  his  office,  the  proprietors  of 
every  such  ditch  or  other  works  shall  forthwith  choose 
some  other  person  in  his  stead  and  certify  his  name  and 
address  in  like  manner  to  the  State  Engineer,  who  shall 
cause  the  same  to  be  transmitted  to  the  Superintendents 
of  Irrigation  to  be  by  them  also  certified  to  the  Water 
Commissioner  of  the  proper  District. 

SEC.  47.  Neither  the  State  Engineer  nor  any  Assis- 
tant State  Engineer,  Deputy  Irrigation  Engineer,  Super- 
intendent of  Irrigation,  Water  Commissioner  or  Assistant 
or  Deputy  of  such  Water  Commissioner  shall  be  liable 
to  any  civil  action  for  any  act  or  omission  in  the  admin- 
istration of  the  duties  of  his  office  unless  it  shall 
manifestly  appear  that  such  officer  in  such  act  or  omis- 
sion, was  guilty  of  corruption,  malice  or  willful  oppres- 
sion. 


ARTICLE  VI. 

PROVISIONS     FOR     ESTABLISHING    AND     PRESERVING     RECORD      EVI- 
DENCE OF  THE  RIGHT  TO  THE  ENJOYMENT  OF  WATER. 

SECTION  i.  Any  person  or  corporation  having  ac- 
quired the  right  to  divert,  convey,  retain,  store  or  use 
water  for  any  purpose  whatsoever,  may  change  the 
place,  purpose  or  manner  of  use  thereof,  at  his  pleasure, 
or  transfer  his  right  in  respect  of  such  waters  to  any 
other  person  or  corporation  proposing  to  use  the  same 
within  this  State;  and  notwithstanding  any  such  change 


82  REPORT   OF   THE   COMMISSION 

in  the  place,  manner  or  purpose  of  the  use  of  such 
waters,  or  such  transfer,  such  person  or  corporation,  his 
heirs  or  assigns,  shall  be  entitled  to  the  same  priority 
and  right  in  respect  to  the  enjoyment  of  such  waters  as 
prior  to  such  change,  or  such  transfer,  and  whether  the 
waters  be  devoted  to  the  same  or  inferior  use;  Provided, 
however,  That  nothing  herein  contained  shall  be  so  con- 
strued as  to  authorize  the  proprietors  of  any  such  works 
to  deny  water  therefrom  to  any  person  entitled  thereto, 
nor  so  as  to  authorize  one  of  the  several  proprietors  of 
any  ditch,  conduit  or  other  works  for  the  diversion  or 
conveyance  of  water,  or  any  consumer  of  water  from 
such  works  to  divert  or  convey  any  portion  of  the 
waters  of  such  ditch,  conduit  or  other  works,  otherwise 
than  by  and  through  such  ditch,  conduit  or  other  works, 
or  to  transfer  or  set  over  to  any  other  person  such  right. 

SEC.  2.  The  right  to  the  enjoyment  of  water*  for 
the  irrigation  of  lands,  or  for  the  operation  of  any  mill 
or  mine,  manufactory,  or  other  machinery,  or  for  other 
purpose  whatsoever,  in  respect  of  the  use  or  enjoyment 
of  lands,  shall  be  deemed  real  estate,  and  no  estate  or 
interest  therein,  (other  than  demises  for  terms  not  ex- 
ceeding one  year),  nor  any  trust  in,  or  power  over  the 
same  shall  be  created,  granted  or  assigned,  surrendered 
or  declared,  unless  by  operation  of  law,  or  by  convey- 
ance in  writing,  subscribed  by  the  party  creating,  grant- 
ing, assigning,  surrendering  or  declaring  the  same,  or 
his  attorney  in  fact  thereunto  duly  authorized;  and 
every  agreement  for  the  sale,  transfer  or  assignment  of 
any  such  right  to  the  use  of  water,  or  for  the  demise  or 
leasing  thereof  for  a  period  greater  than  one  year,  shall 
be  void  unless  such  contract  or  some  note  or  memo- 
randum thereof,  expressing  the  consideration,  be  made, 
in  writing,  and  subscribed  by  the  party  by  whom  such 
assignment,  transfer,  demise  or  lease  is  to  be  made,  or 
by  his  agent  lawfully  authorized  thereunto. 


CONCI'RNIXC,    TIIK    \V.\TI-RS    oi-    TIIIv    STATK.  8 

Six.  3.  Deeds  of  conveyance  and  agreements  in 
writing  for  the  sale  of  or  affecting  title  to  any  such  right 
to  the  use  of  waters  for  the  irrigation  or  betterment  of 
lands,  or  for  the  operation  of  any  mine,  or  any  mill, 
manufactory  or  machinery,  or  having  reference  other- 
wise to  the  enjoyment  or  betterment  of  lands,  may  be 
acknowledged  and  recorded  in  the  office  of  the  Recorder 
of  the  county  wherein  such  lands  are  situate,  and  from 
and  after  the  filing  thereof  in  such  office,  and  not  before, 
the  same  shall  take  effect  as  to  subsequent  bona  fide 
purchasers  and  encumbrancers  by  mortgage,  judgment 
or  otherwise,  not  having  notice  thereof. 

Si«:c.  4.  Wherever  any  person  being  entitled  to  the 
use  and  enjoyment  of  waters  for  the  irrigation  of  lands, 
or  for  the  operation  of  any  mine,  mill,  manufactory  or 
other  works,  or  in  respect  of  other  use  in  the  enjoyment 
or  betterment  of  lands,  shall  propose  to  transfer  the 
customary  use  thereof,  or  any  part  of  such  waters,  to  the 
irrigation  of  other  lands,  or  the  operation  of  any  other 
mine,  mill  or  manufactory,  or  to  oiher  uses  whatsoever, 
he  shall  make,  acknowledge  and  cause  to  be  recorded  in 
the  office  of  the  Recorder  of  each  county  wherein  the 
said  waters  have  been  theretofore  customarily  used  or  are 
proposed  to  be  used,  subsequent  to  such  change  of  use, 
a  certificate,  setting  forth  his  purpose  in  that  behalf,  and 
the  particular  lands  irrrigated,  or  the  particular  mine, 
mill,  manufactory  or  other  works  theretofore  operated, 
or  the  other  use  or  place  in  respect  to  the  enjoyment  of 
lands  to  which  the  same  waters  have  been  theretofore 
applied,  and  the  lands  proposed  to  be  irrigated,  or  the 
mine,  mill,  manufactory  or  other  works  proposed  to  be 
operated,  or  the  lands  in  respect  whereof  such  waters 
are,  subsequent  to  such  change,  proposed  to  be  used  and 
enjoyed,  and  until  such  certificate  be  filed  as  above 
specified,  such  waters  and  the  right  to  the  use  and  enjoy- 
ment thereof  shall  continue  in  law  appurtenant  to  the 
same  lands,  mine,  mill,  manufactory  or  other  works,  or 


84  REPORT   OF  THE   COMMISSION 

places  where  or   upon  or  in  respect  whereof  the  same 

have  theretofore  been  used  and  enjoyed  as  against  bona 

fide   purchasers,    or   encumbrancers   not    having  actual 

notice  of  such  change  in  the  place  of  use  of  such  water. 

SEC.  5.  Any  conveyance  of  lauds  customarily  irri- 
gated by  water  to  the  use  whereof  the  proprietor  of  such 
lands  is  or  may  be  entitled,  or  of  any  mine,  or  any  mill, 
manufactory  or  other  works  operated  by  means  of  such 
water,  or  of  other  lands  or  places  whereunto  -the  use  or 
enjoyment  of  water  hath  become  appurtenant  by  reason 
of  the  use  and  enjoyment  of  such  lands  and  places  by 
means  of  such  water,  and  all  agreements  for  the  sale 
and  conveyance  of  such  lands  or  any  interest  therein, 
shall  be  deemed  and  taken  to  pass  and  convey  or  include, 
the  right  to  the  use  of  such  water  as  theretofore  enjoyed 
by  the  grantor  in  such  conveyance,  or  the  vendor  in 
such  agreement  of  sale,  unless* the  same  be  expressly 
reserved  or  excepted  out  of  such  conveyance  or  agree- 
ment. 

SEC.  6.  On  or  before  the  first  day  of  July,  A.  D. 
1891,  the  proprietor  or  proprietors  of  every  ditch,  con- 
duit or  other  works  theretofore  constructed  for  the  diver- 
sion, conveying  or  storage  of  water,  for  the  several  use 
and  enjoyment  of  the  members  of  the  association  or 
corporation,  or  other  individual  consumers,  shall  prepare 
and  cause  to  be  subscribed  and  verified  by  the  President 
or  other  chief  officer  of  the  association  or  corporation, 
proprietors  of  such  works,  or  the  superintendent  thereof 
appointed  in  pursuance  of  this  Act,  a  certificate  or  cer- 
tificates setting  forth  the  name  of  such  ditch,  conduit, 
reservoir,  or  other  works;  the  Water  District  wherein 
the  same  is  situate;  the  name  of  each  individual  mem- 
ber, share-holder  or  other  person  then  enjoying  and 
on  titled  to  the  use  of  water  from  such  works;  the 
amount  of  water  to  which  such  consumer  is  entitled,  as 
nearly  as  may  be,  specifying  the  same  in  cubic  feet  per 
second;  the  particular  land  for  the  irrigation  of  which 


Tin-   \V.\TI:RS  or  THK  STATE. 

said  water  has  theretofore  been  customarily  used  or 
enjoyed  by  such  individual  consumer,  or  the  mine,  mill 
manufactory  or  other  works  theretofore  customarily 
operated  by  such  water,  or  other  lands  for  the  enjoy- 
ment or  betterment  of  which  such  waters  have  been 
customarily  applied;  and  the  date  from  which  such 
person  or  his  predecessor  iu  interest  has  used  or  enjoyed 
such  water,  and  shall  verify  such  certificate  as  true  to 
his  best  knowledge,  information  and  belief,  and  cause 
one  original  of  such  certificate,  verified  as  aforesaid,  to 
be  filed  and  recorded  in  the  office  of  the  County  Clerk 
of  each  county  wherein  such  works,  or  any  part  thereof, 
may  be  situate,  or  wherein  any  part  of  the  waters 
diverted,  conveyed  or  stored  by  means  thereof,  may  be 
used  and  enjoyed. 

SEC.  7.  The  Clerk  shall  be  entitled  to  like  fees  for 
recording  such  certificate  as  for  recording  conveyances 
of  lands. 

SEC.  8.  Every  such  certificate  until  vacated,  modi- 
fied or  set  aside,  as  hereinafter  provided,  shall  be  deemed 
and  taken  as  prima  facia  evidence  in  all  Courts  and 
places  of  the  matters  and  things  therein  contained. 

SEC.  9.  Any  member  or  share-holder  of  any  such 
association  or  corporation,  or  other  consumer  of  water 
under  such  works,  or  persons  claiming  to  be  entitled  to 
the  use  and  enjoyment  of  water  from  such  works,  and 
not  named  in  such  certificate  as  so  entitled,  or  claiming 
to  be  entitled  to  a  greater  amount  of  water,  or  to  the 
uses  or  enjoyment  of  water  otherwise  than  in  such  cer- 
tificate mentioned,  may  exhibit  in  the  District  Court  of 
the  county  wherein  he  claims  to  be  entitled  to  use  and 
to  enjoy  such  water,  or  any  part  thereof,  his  complaint 
for  establishing  his  right  in  that  behalf. 

SEC.  10.  In  like  manner  whenever  the  proprietor 
or  proprietors  of  any  ditch,  conduit  or  other  works  for 
diverting,  conveying  or  storing  waters  for  the  several 


86  REPORT   OF  THE  COMMISSION 

use  and  enjoyment  of  the  proprietors  thereof,  or  the 
members  of  the  association  or  corporation,  proprietors 
thereof,  or  other  individual  consumers,  shall  fail  or 
refuse  to  make  or  file  such  certificate,  any  person  claim- 
ing to  be  entitled  to  the  use  or  enjoyment  of  water  from 
such  works  may  exhibit  his  complaint  in  such  District 
Court,  praying  the  establishment  of  his  right  and  the 
right  of  all  others  similarly  situated  in  that  behalf. 

SEC.  ii.  The  parties  to  the  complaint  and  the  pro- 
ceedings thereupon  shall  be  as  prescribed  in  the  ninth 
Article. 

SEC.  12.  "Nothing  in  this  Article  contained  shall  be 
construed  so  as  to  require  any  city  or  town  supplying 
water  to  the  inhabitants  thereof,  or  corporations,  asso- 
ciations or  persons  supplying  water  to  any  city  or  town 
for  the  inhabitants  thereof  for  domestic  uses,  to  make 
and  file  the  certificate  required  by  the  sixth  section  hereof.. 


ARTICLE  VII. 

OF  THE   WATER    DIVISIONS  AND   WATER  DISTRICTS. 

SECTION  i.  For  the  better  regulation  of  the  distri- 
bution of  water  among  the  several  persons  and  corpora- 
tions entitled  to  divert,  carry,  distribute  and  use  the 
same,  the  State  shall  be  divided  into  Water  Divisions 
and  Water  Districts  as  follows: 

SEC.  2.  All  lands  within  the  drainage  basin  of  the 
South  Platte  river  shall  constitute  Water  Division 
Number  One,  and  be  named  the  South  Platte  Division. 

SEC.  3.  All  lands  within  the  drainage  basin  of  the 
Arkansas  river  shall  constitute  Water  Division  Number 
Two,  and  be  named  the  Arkansas  Division. 

SEC.  4.  All  lands  within  the  drainage  basin  of  the 
Rio  Grande  river  shall  constitute  Water  Division  Num- 
ber Three,  and  be  named  the  Rio  Grande  Division. 


CONCERNING  THE  WATERS  OF   THE   STATl  & 

SEC.  5.  All  lands  within  the  drainage  basin  of  the 
San  Juan  river  or  the  drainage  basin  of  the  Dolores 
rivi-r  shall  constitute  Water  Division  Number  Four,  an«l 
be  named  the  San  Juan  Division. 

SEC.  6.  All  lands  within  the  drainage  basin  of  the 
Grand  river  shall  constitute  Water  Division  Number 
Five,  and  be  named  the  Grand^  River  Division. 

SEC.  7.  All  lands  within  the  drainage  basin  of  the 
Green  river  (except  that  part  thereof  drained  by  the 
White  river)  shall  constitute  Water  Division  Number 
Six,  and  be  named  the  Green  River  Division. 

SEC.  8.  All  lands  within  the  drainage  basin  of  the 
White  river  shall  constitute  Water  Division  Number 
Seven,  and  be  named  the  White  River  Division. 

SEC.  9.  All  lands  within  the  drainage  basin  of  the 
North  Platte  river  shall  constitute  Water  Division  Num- 
ber Eight,  and  be  named  the  North  Platte  Division. 

SEC.  10.  All  lands  within  the  drainage  basin  of  the 
Republican  river,  or  the  Smoky  Hill  river,  shall  consti- 
tute Water  Division  Number  Nine,  and  be  named  the 
Republican  Division. 

SEC.  ii.  Wherever  in  any  case  any  of  the  waters 
of  any  drainage  basin  have  been  or  shall  hereafter  be 
diverted  therefrom  and  carried  into  the  drainage  basin 
of  another  Water  Division  as  above  defined,  the  waters 
so  diverted  and  carried  shall,  for  the  purpose  of  the 
adjudication  of  the  rights  and  priorities  of  the  appro- 
priators  thereof,  and  for  the  control  of  the  diversion  of 
such  waters  and  the  head  of  the  ditch,  canal  or  other 
works  whereby  the  same  are  diverted,  be  deemed  to  be 
within  the  Water  Division  wherein  is  situate  the 
natural  stream  out  of  which  such  waters  may  be  taken; 
but  in  respect  to  the  distribution  and  administration 
of  such  waters  among  the  several  consumers  thereof,  the 
same  shall  be  deemed  to  be  within  the  Water  Division 
and  the  Water  District  thereof  into  which  the  same  may 


8N  REPORT  OF  THE   COMMISSION 

be  first  carried,  and  all  lands  irrigated  thereby  shall  be 
deemed  to  be  in  such  Water  District,  anything  to  the 
contrary  in  this  act  notwithstanding. 

SEC.  12.  All  lands  irrigated  by  waters  taken  from 
the  South  Platte  river,  between  the  Cache  a  la  Poudre 
river  and  the  west  boundary  of  Washington  county,  or 
from  the  tributaries  whjch  flow  into  that  part  of  the 
South  Platte  aforesaid,  and  all  lands  included  within  that 
part  of  the  basin  of  the  South  Platte  drained  by  said 
portion  of  the  South  Platte  river  or  by  the  tributaries 
thereof  aforesaid,  and  not  irrigated  by  water  taken  from 
any  other  stream  or  any  other  part  of  the  said  South 
Platte  river,  shall  constitute  Water  District  Number 
One. 

SEC.  13.  All  lands  irrigated  by  waters  taken  from 
the  South  Platte  river  between  the  Cache  a  la  Poudre 
and  Cherry  creek>  or  by  waters  taken  from  the  tributa- 
ries of  said  stream  which  flow  into  that  part  thereof 
aforesaid  (except  the  Big  Thompson,  St.  Vrain  and 
Clear  creek),  and  all  lands  included  within  that  part  of 
the  drainage  basin  of  the  South  Platte  river  drained  by 
said  portion  of  the  South  Platte  river  or  by  the  tributa- 
ries thereof  aforesaid  (except  the  Big  Thompson,  St. 
Vrain  and  Clear  creek),  and  not  irrigated  by  waters 
taken  from  any  other  stream,  or  any  other  part  of  the 
said  South  Piatte  river,  shall  constitute  Water  District 
Number  Two. 

SEC.  14.  All  lands  irrigated  by  waters  taken  from 
the  Cache  a  la  Poudre  or  its  tributaries,  and  all  lands 
included  within  the  drainage  basin  of  said  stream,  not 
irrigated  by  waters  taken  from  any  other  stream,  shall 
constitute  Water  District  Number  Three. 

SEC.  15.  All  lands  irrigated  by  waters  taken  from 
Big  Thompson  creek  or  its  tributaries,  or  included 
•within  the  drainage  basin  of  said  stream, -and  not  irri- 
gated by  waters  taken  from  any  other  stream,  shall  con- 
stitute Water  District  Number  Four. 


7 


CONCERNING   THI-;   \V.\TI-RS  OP  TIII-;  STATB, 


[6.  All  lands  irrigated  by  waters  taken  from 
the  St.  Vrain  creek  or  its  tributaries  (except  the 
Boulder  and  its  tributaries),  and  all  lands  included 
within  the  drainage  basin  thereof,  and  not  within  the 
drainage  basin  of  the  Boulder,  and  not  irrigated  by 
waters  taken  from  any  other  stream,  shall  constitute 
Water  District  Number  Five. 

SKC.  17.  All  lands  irrigated  by  waters  taken  from 
Boulder  creek  or  the  tributaries  thereof,  and  all  lands 
included  within  the  drainage  basin  of  the  Boulder,  not 
irrigated  by  waters  taken  from  any  other  stream,  shall 
constitute  Water  District  Number  Six. 

SEC.  18.  All  lands  irrigated  by  waters  taken  from 
Clear  creek  and  the  tributaries  thereof,  and  all  lands 
within  the  drainage  basin  of  Clear  creek,  not  irrigated 
by  waters  taken  from  any  other  stream,  shall  constitute 
Water  District  Number  Seven. 

SEC.  19.  All  lands  irrigated  by  waters  taken  from 
the  South  Platte  river  between  the  confluence  of  the 
north  and  south  branches  thereof,  and  the  westerly 
boundary  of  Water  District  Number  Two,  or  from  the  trib- 
utaries flowing  to  that  part  thereof,  (except  Bear  creek), 
and  all  lands  included  within  that  part  afore  described 
of  the  basin  of  the  South  Platte  river,  (except  the  basin 
of  Bear  creek),  and  not  irrigated  by  water  taken  from 
any  other  stream,  shall  constitute  Water  District  Num- 
ber Eight. 

SEC.  20.  All  lands  irrigated  by  waters  taken  from 
Bear  creek  and  the  tributaries  thereof;  and  all  lands 
included  within  the  drainage  basin  of  said  stream,  not 
irrigated  by  waters  taken  from  any  other  stream,  shall 
constitute  Water  District  Number  Nine. 

SEC.  21.  All  lands  irrigated  by  waters  taken  from 
the  Fountaine  qui  Bouille  above  the  south  boundary  of 
El  Paso  county,  or  from  the  tributaries  thereof  which 
flow  thereunto  in  that  part  thereof  aforesaid,  and  all  lands 

12 


90  REPORT  OF  THE  COMMISSION 

contained  within  that  part  of  the  drainage  basin  of  said 
stream  above  described,  not  irrigated  by  water  taken 
from  any  other  stream,  shall  constitute  Water  District 
Number  Ten. 

SEC.  22.  All  lands  irrigated  by  waters  taken  from 
that  portion  of  the  Arkansas  river  above  Water  District 
Number  Twelve,  or  from  the  tributaries  flowing  into  said 
stream  in  that  part  thereof  aforesaid,  and  all  lands 
included  within  that  part  of  the  drainage  basin  of  the 
Arkansas  river  above  described  and  not  irrigated  by 
waters  taken  from  any  other  stream,  shall  constitute 
Water  District  Number  Eleven. 

SEC.  23.  All  lands  irrigated  by  waters  taken  from 
the  Arkansas  river  at  any  point  within  the  limits  of  Fre- 
mont county,  and  all  lands  irrigated  by  waters  taken 
from  the  tributaries  of  the  Arkansas  river  flowing  into 
that  part  thereof  aforesaid,  (except  Grape  creek  and  its 
tributaries)  and  all  lands  drained  by  that  part  of  the 
Arkansas  river  lying  in  Fremont  county  or  the  tribu- 
taries thereof  flowing  into  the  same  in  that  part  thereof 
aforesaid,  (except  Grape*  creek  and  its  tributaries)  and 
not  irrigated  by  waters  taken  from  any  other  stream  or 
any  other  part  of  the  Arkansas  river,  shall  constitute 
Water  District  Number  Twelve. 

SEC.  24.  All  lands  irrigated  by  waters  taken  from 
Grape  creek  or  the  tributaries  thereof  and  all  lands 
included  within  the  drainage  basin  thereof,  not  irrigated 
by  waters  taken  from  any  other  stream,  shall  constitute 
Water  District  Number  Thirteen. 

SEC.  25.  All  lands  irrigated  by  waters  taken  from 
that  part  of  the  Arkansas  river  within  the  boundaries 
of  Pueblo  county  or  from  the  tributaries  thereof,  flowing 
into  that  part  thereof  aforesaid  (except  the  St.  Charles  and 
Huerfano  and  the  tributaries  thereof,  and  except  also 
that  portion  of  the  Fountaine  qui  Bouille  embraced  in 
Water  District  Number  Ten  and  the  tributaries  thereof 
flowing  into  that  part  of  said  stream)  and  all  lands  con- 


7 
I 


riu-;  WATI-; us  <>i-  TIIK  STATE.       '.»! 

taint- d  witliin  that  part  of  the  drainage  basin  of  the  Arkan- 
sas river  and  the  tributaries  thereof  aforesaid,  (except  the 
drainage  basin  of  the  St.  Charles  and  Hnerfano  and 
except  that  part  of  the  drainage  basin  of  the  Fotintaine 
qni  Honille  contained  within  the  limits  of  District  Num- 
ber Ten)  and  not  irrigated  by  waters  taken  from  any  other 
stream  or  any  other  portion  of  said  Arkansas  river,  shall 
constitute  Water  District  Number  Fourteen. 

SEC.  26.  All  lands  irrigated  by  waters  taken  from 
the  St.  Charles  river  and  its  tributaries,  and  all  lands 
included  within  the  drainage  basin  of  said  stream,  not 
irrigated  by  waters  taken  from  any  other  stream,  shall 
constitute  Water  District  Number  Fifteen. 

SEC.  27.  All  lands  irrigated  by  waters  taken  from 
the  Hnerfano  and  its  tributaries,  and  all  lands  included 
within  the  drainage  basin  of  said  stream,  and  not  irri- 
gated by  water  taken  from  any  other  stream,  shall  con- 
stitute Water  District  Number  Sixteen. 

SEC.  28.  All  lands  irrigated  by  waters  taken  from 
that  portion  of  the  Arkansas  river  below  Water  District 
Number  Fourteen  and  above  the  Purgatoire  river,  or  by 
waters  taken  from  the  tributaries  of  the  Arkansas  river 
flowing  into  that  portion  thereof  aforesaid  (except  the 
Apishapa  and  its  tributaries),  and  all  lands  within  that 
part  of  the  basin  of  the  Arkansas  drained  by  the  said 
portion  of  the  Arkansas  river  or  by  the  tributaries 
thereof  aforesaid  (except  the  Apishapa  and  its  tributa- 
ries), and  notirrigated  by  waters  taken  from  any  other 
stream  or  any  other  part  of  said  Arkansas  river,  shall 
constitute  Water  District  Number  Seventeen. 

SEC.  29.  All  lands  irrigated  by  waters  taken  from 
the  Apishapa  or  the  tributaries  thereof,  and  all  lands 
included  within  the  basin  of  said  stream  not  irrigated 
by  waters  taken  from  any  other  stream,  shall  constitute 
Water  District  Number  Eighteen. 


V'2  REPORT   OF   THE   COMMISSION 

SEC.  30.  All  lands  irrigated  by  waters  taken  from  the 
Purgatoire  river  or  the  tributaries  thereof,  and  all  lands 
contained  within  the  drainage  basin  of  said  stream  and 
not  irrigated  by  waters  taken  from  any  other  stream, 
shall  constitute  Water  District  Number  Nineteen. 

SEC.  31.  All  lands  irrigated  by  waters  taken  from 
that  portion  of  the  Rio  Grande  above  the  mouth  of  the 
Conejos,  or  from  the  tributaries  thereof  which  flow  into 
that  part  thereof  aforesaid,  including  the  Piedra,  Spring 
creek,  Gato  and  San  Francisco  creeks,  and  all  other 
streams  which  in  time  of  flood  might  flow  into  that  por- 
tion of  the  Rio  Grande  above  described,  (except  the 
Alamosa,  La  Jara  and  Trinchera,  and  their  tributaries), 
and  all  lands  included  within  that  part  of  the  drainage 
basin  of  the  Rio  Grande  drained  by  said  portions  of  the 
Rio  Grande  or  the  tributaries  thereof  aforesaid,  (except 
the  Alamosa,  the  La  Jara  and  the  Trinchera  and  their 
tributaries),  and  not  irrigated  by  waters  taken  from  any 
other  stream  or  from  any  other  part  of  the  Rio  Grande, 
shall  constitute  Water  District  Number  Twenty;  Pro- 
vided, however,  That  nothing  herein  contained  shall 
be  construed  to  limit  or  diminish  Water  Districts  Num- 
bers Twenty-five,  Twenty-six  and  Twenty-seven,  as 
below  described,  or  either  thereof. 

SEC.  32.  All  lands  irrigated  by  waters  taken  from 
the  Alamosa  or  the  La  Jara  or  the  tributaries  thereof, 
and  all  lands  included  within  the  drainage  basin  of 
either  of  said  streams,  and  not  irrigated  by  waters  taken 
from  any  other  stream,  shall  constitute  Water  District 
Number  Twenty-one. 

SEC.  33.  All  lands  irrigated  by  waters  taken  from 
the  Conejos  or  the  tributaries  thereof,  and  all  lands 
included  within  the  drainage  basin  of  said  stream,  not 
irrigated  by  waters  taken  from  any  other  stream,  shall 
constitute  Water  District  Number  Twenty-two. 

SEC.  34.  All  lands  irrigated  by  waters  taken  from 
th-e  South  Platte  river  or  the  tributaries  thereof,  above 


i 


CONCERNING   Tin-:   WATBRS  Oi-   Tin-    STATE         '»:: 

Water  District  Number  Kight,  rind  all  lands  included 
within  that  part  of  the  drainage  basin  of  the  South  Platte 
river  aforedescribed,  and  not  irrigated  by  waters  taken 
from  any  other  stream,  shall  constitute  Water  District 
Number  Twenty-three. 

SEC.  35.  All  lands  irrigated  by  waters  taken  from 
the  Rio  Grande  between  the  Conejos  and  the  State  line 
or  from  the  tributaries  thereof  which  flow  into  that  part 
thereof  aforesaid,  or  from  the  Costilla  or  the  tributaries 
thereof  or  streams  which  might  in  time  of  flood  flow 
thereto,  and  all  lands  included- within  that  part  of  the 
basin  of  the  Rio  Grande  drained  by  that  part  thereof 
aforesaid,  or  by  the  tributaries  thereof  aforesaid,  or  by 
the  Costilla  or  the  tributaries  thereof,  and  not  irrigated 
by  waters  taken 'from  any  other  stream  or  any  other 
part  thereof  than  as  aforesaid,  shall  constitute  Water 
District  Number  Twenty-four. 

SEC.  36.  All  lands  irrigated  by  waters  taken  from 
the  San  Luis  creek,  San  Medino  creek,  Big  Spring 
creek,  Little  Spring  creek,  North  Zapato- creek.  South 
Zapato  creek,  Middle  creek,  Bear  creek,  Sierra  Blanca 
creek,  or  the  tributaries  thereof  respectively,  or  from 
any  other  stream  between  said  San  Medino  and  the 
Sierra  Blanca  creeks,  and  all  lands  included  within  the 
basin  drained  by  said  streams  not  irrigated  by  waters 
taken  from  any  other  streams,  shall  constitute  Water 
District  Number  Twenty-five. 

SEC.  37.  All  lands  irrigated  by  waters  taken  from 
the  Saguache  creek  and  its  tributaries,  and  all  lands 
included  within  the  drainage  basin  of  Saguache  creek 
not  irrigated  by  waters  taken  from  any  other  stream, 
and  not  contained  within  the  limits:|of  Water  District 
Number  Twenty-seven,  as  hereinafter  defined,  shall 
constitute  Water  District  Number  Twenty-six. 

SEC.  38.  All  lands  irrigated  by  waters  taken  from 
Turtle  creek,  Carnero  creek,  La  Garita  creek  or  other 


94  REPORT  OF  THE  COMMISSION 

creeks  or  streams  which  have  their  sources  in  the  La 
Garita  mountains  and  flow  eastward  into  the  San  Luis 
Valley,  and  not  into  the  Rio  Grande  or  Saguache  creek, 
and  all  lands  included  within  the  basin  drained  by  either 
of  said  streams,  and  not  irrigated  by  waters  taken  from 
any  other  stream,  shall  constitute  Water  District  Num- 
ber Twenty-seven. 

SEC.  39.  All  lands  irrigated  by  waters  taken  from 
the  Tomichi  river  or  the  tributaries  thereof,  and  all 
lands  included  within  the  drainage  basin  of  the  Tomichi 
not  irrigated  by  waters  -taken  from  any  other  stream, 
shall  constitute  Water  District  Number  Twenty-eight. 

SEC.  40.  All  lands  irrigated  by  waters  taken  from 
the  Rio  Piedra  or  its  tributaries,  or  the  San  Juan  river 
above  the  mouth  of  the  Rio  Piedra  or  from  the  tribu- 
taries of  said  San  Juan  which  flow  into  that  part  thereof 
aforedescribed,  and  all  lands  lying  within  the  basin 
drained  by  the  part  of  the  San  Juan  river  aforesaid  and 
the  tributaries  thereof  aforesaid,  and  not  irrigated  by 
waters  taken  from  any  other  stream,  shall  constitute 
Water  District  Number  Twenty-nine. 

SEC.  41.  All  lands  irrigated  by  waters  taken  from 
the  Rio  Lis  Animas  or  its  tributaries,  and  all  lands 
lying  within  the  drainage  basin  of  said  stream,  and  not 
irrigated  by  waters  taken  from  any  other  stream,  shall 
constitute -Water  District  Number  Thirty. 

SEC.  42.  All  lands  irrigated  by  waters  taken  from 
the  Los  Pinos  or  its  tributaries,  and  all  lands  contained 
within  the  drainage  basin  of  said  stream,  not  irrigated 
by  waters  taken  from  any  other  stream,  shall  constitute 
Water  District  Number  Thirty-one. 

SEC.  43.  All  lands  irrigated  by  waters  taken  from 
the  tributaries  of  the  San  Juan  river  not  included  in  the 
Water  Districts  Numbered  Twenty-nine,  Thirty,  Thirty- 
one,  Thirty-three  and  Thirty-four,  or  either  thereof, 
and  all  lands  included  within  the  basin  drained  by  said 


CONCERNING    Til  1C   WATF.RS   OF    Till-:    STATE.         (X> 

tributaries,  not  irrigated  by  waters  taken  from  any  other 
stream,  shall  constitute  Water  District  Number  Thirty- 
two. 

SEC.  44.  All  lands  irrigated  by  waters  taken  from 
the  La  Plata  river  and  the  tributaries  thereof,  and  lands 
included  within  the  drainage  basin  of  said  stream,  not 
irrigated  by  waters  taken  from  any  other  stream,  shall 
constitute  Water  District  Number  Thirty-three. 

SEC.  45.  All  lands  irrigated  by  waters  taken  from 
the  Rio  Mancos  or  the  tributaries  thereof,  and  all  lands 
within  the  drainage  basin  of  said  stream,  not  irrigated 
by  waters  taken  from  any  other  stream,  shall  constitute 
Water  District  Number  Thirty-four. 

SEC.  46.  All  lands  irrigated  by  waters  taken  from 
the  Trinchera  and  the  tributaries  thereof,  or  from  the 
streams  which  might  in  time  of  flood  discharge  into 
said  stream,  and  all  lands  lying  within  the  basin  drained 
by  the  streams  aforesaid,  not  irrigated  by  waters  taken 
from  any  other  stream,  shall  constitute  Water  District 
Number  Thirty-five. 

SEC.  47.  All  lands  irrigated  by  waters  taken  from 
the  Blue  river  or  its  tributaries,  and  all  lands  included 
within  the  drainage  basin  of  said  stream,  not  irrigated 
by  waters  taken  from  any  other  stream,  shall  constitute 
Water  District  Number  Thirty-six. 

SEC.  48.  All  lands  irrigated  by  waters  taken  from 
the  Eagle  river  or  the  tributaries  thereof,  and  all  lands 
included  within  the  drainage  basin  of  said  stream,  not 
irrigated  by  waters  taken  from  any  other  stream,  shall 
constitute  Water  District  Number  Thirty-seven. 

SEC.  49.  All  lands  irrigated  by  waters  taken  from 
the  Roaring  Fork  of  the  Grand  or  the  tributaries 
thereof,  and  all  lands  included  within  the  drainage 
basin  of  said  streams,  not  irrigated  by  waters  taken 
from  any  other  stream,  shall  constitute  Water  District 
Number  Thirty-eight. 


i)<>  REPORT   OF  THE   COMMISSION 

SEC.  50.  All  lands  irrigated  by  waters  taken  from 
Roan  creek  or  from  the  Grand  river  on  the  north  side 
thereof,  between  the  mouth  of  Roan  creek  and  the 
mouth  of  Roaring  Fork,  and  all  lands  irrigated  by- 
waters  taken  from  the  tributaries  of  Roan  creek  or  those 
flowing  to  that  part  of  the  Grand  aforesaid  on  the  north 
side  thereof,  and  all  lands  included  within  the  drainage 
basin  of  that  part  of  the  Grand  river  aforesaid  and  lying 
on  the  north  side  thereof,  not  irrigated  by  waters  taken 
from  any  other  stream  or  any  other  part  of  the  same 
stream,  or  diverted  on  the  south  side  thereof,  shall  con- 
stitute Water  District  Number  Thirty-nine. 

SEC.  51.  All  lands  irrigated  by  waters  taken  from 
Crystal  creek  or  the  tributaries  thereof,  or  from  the 
Gunnison  river  between  Crystal  creek  and  the  westerly 
limit  of  Delta  county,  or  from  the  tributaries  thereof 
which  flow  thereunto  in  that  part  thereof  aforesaid, 
(except  the  Uncompahgre),  and  all  lands  included  within 
the  basin  of  Crystal  creek,  or  that  part  aforedescribed 
of  the  basin  of  the  Gunnison  (except  the  basin  of  the 
Uncompahgre),  not  irrigated  by  waters  taken  from  any 
other  stream  or  any  other  portion  of  said  Gunnison  river, 
shall  constitute  Water  District  Number  Forty. 

SEC.  52.  All  lands  irrigated  by  waters  taken  from 
the  Uncompahgre  river  or  the  tributaries  thereof,  and 
all  lands  included  within  the  basin  of  said  stream  not 
irrigated  by  waters  taken  from  any  other  stream,  shall 
constitute  Water  District  Number  Forty-one. 

SEC.  53.  All  lands  irrigated  by  waters  taken  from 
the  Grand  river  between  the  mouth  of  Roan  creek  or 
the  tributaries  flowing  thereto  in  that  part  thereof,  or 
by  the  waters  taken  from  the  Gunnison  river  below  the 
west  boundary  of  Delta  county,  or  from  the  tributaries 
which  flow  thereto  in  that  part  thereof  aforesaid,  and  all 
lands  included  within  the  basin  of  said  streams  or  either 
thereof,  in  that  part  thereof  aforesaid,  or  the  tributaries 
flowing  thereto,  and  not  irrigated  by  waters  taken  from 


CONCERNING  Tin    \V\TKKS  <>r  Tin-:  STATE,       '•• 

any  other  stream,  shall  constitute  Water   District  Num- 
ber Forty-two. 

SEC.  54.  All  lands  irrigated  by  waters  taken  from 
the  White  river  or  the  tributaries  thereof,  and  all  lands 
included  within  the  drainage  basin  of  said  stream,  not 
irrigated  by  waters  taken  from  any  other  stream,  shall 
constitute  Water  District  Number  Forty-three. 

SEC.  55.  All  lands  irrigated  by  waters  taken  from 
the  Yam  pa  river  above  the  Little  Snake  river,  and  below 
Fortification  creek,  or  from  the  tributaries  which  flow 
thereto  in  that  part  thereof  aforesaid,  and  all  lands 
included  within  the  basin  drained  by  that  part  of  the 
Yampa  river  and  the  tributaries  thereof  above  described 
and  not  irrigated  by  waters  taken  from  any  other  stream 
or  any  other  part  of  the  said  Yampa  river,  shall  consti- 
tute Water  District  Number  Forty-four. 

SEC.  56.  All  lands  irrigated  by  waters  taken  from 
the  Grand  river  on  the  south  side  thereof  between  the 
mouth  of  the  Roaring  Fork  and  the  mouth  of  Roan 
creek,  or  from  the  tributaries  thereof,  which  flow  there- 
unto from  the  south,  in  that  part  thereof  aforesaid,  and 
all  lands  included  within  that  part  of  the  basin  of  the 
Grand  above  described  and  lying  on  the  south  side 
thereof,  not  irrigated  by  waters  taken  from  any  other 
stream  or  any  other  part  of  the  Grand  river  or  diverted 
on  the  north  side  thereof,  shall  constitute  Water  District 
Number  Forty-five. 

SEC.  57.  All  lands  irrigated  by  waters  taken  from 
the  North  Platte  river  above  the  mouth  of  Michigan 
creek,  or  from  the  tributaries  which  flow  into  that  part 
of  said  stream,  and  all  lauds  included  within  that  part 
of  the  basin  of  said  river  above  described,  not  irrigated 
by  waters  taken  from  any  other  stream,  shall  constitute 
Water  District  Number  Forty-six. 

SEC.  58.  All  lands  irrigated  by  waters  taken  from 
the  North  Platte  river  below  the  mouth  of  Michigan 

13 


98  REPORT    OF  THE   COMMISSION 

creek  or  from  the  tributaries  thereof  flowing  thereto  in 
that  part  thereof  aforesaid,  or  from  Grand  Encampment 
creek  or  the  tributaries  thereof,  and  all  lands  included 
within  that  portion  of  the  drainage  basin  of  the  North 
Platte  river  above  described,  or  the  basin  of  Grand 
Encampment  creek,  and  not  irrigated  by  waters  taken 
from  any  other  stream  or  any  other  portion  of  the  North 
Platte  river,  shall  constitute  Water  District  Number 
Forty-seven. 

SEC.  59.  All  lands  irrigated  by  waters  taken  from 
the  Big  Laramie  river  or  the  tributaries  thereof,  and 
all  lands  included  within  the  basin  of  said  stream 
not  irrigated  by  waters  taken  from  any  other  stream, 
shall  constitute  Water  District  Number  Forty-eight. 

.  SEC.  60.  All  lands  irrigated  by  waters  taken  from 
the  south  fork  of  the  Republican  river  or  the  Smoky 
Hill  river,  or  the  tributaries  thereof,  and  all  lands 
included  within  the  basin  of  either  of  said  streams  and 
not  irrigated  by  waters  taken  from  any  other  stream, 
shall  constitute  Water  District  Number  Forty-nine. 

SEC.  61.  All  lands  irrigated  by  waters  taken  from 
Muddy  creek,  or  Troublesome  creek,  or  the  tributaries 
thereof,  and  all  lands  included  within  the  basin  of 
either  of  said  streams,  not  irrigated  by  waters  taken 
from  any  other  stream,  shall  constitute  Water  District 
Number  Fifty. 

SEC.  62.  All  lands  irrigated  by  waters  taken  from 
the  Grand  river  above  the  mouth  of  the  Blue  river  or 
from  the  tributaries  which  flow  into  that  part  of  said 
stream,  (except  the  Muddy  and  Troublesome  creeks), 
and  all  lands  within  that  portion  of  the  basin  of  said 
stream  above  described,  and  not  irrigated  by  waters 
taken  from  any  other  stream,  shall  constitute  Water 
District  Number  Fifty-one. 

SEC.  63.  All  lands  irrigated  by  waters  taken  from 
the  Grand  river  on  the  south  side  thereof,  below  the 


CONCERNING    1H1C   WATERS  OF  THE  STATIC          '.«'.» 

mouth  of  the  Blue  river,  and  above  the  mouth  of  the 
•in»-  Pork,  or  from  the  tributaries  thereof  which 
flow  thereunto  from  the  south  in  that  part  thereof  afore- 
said, (except  the  Eagle),  and  all  lands  included  within 
that  portion  of  the  basin  of  the  Grand  river  above 
ibed,  and  lying  on  the  south  side  thereof,  (except 
the  basin  of  the  Eagle),  not  irrigated  by  waters  taken 
from  any  other  stream  or  any  other  part  of  the  Grand 
river,  or  diverted  on  the  north  side  thereof,  shall  consti- 
tute Water  District  Number  Fifty-two. 

SEC.  64.  All  lands  irrigated  by  waters  taken  from 
the  Grand  river  on  the  north  side  thereof  below  the 
mouth  of  Muddy  creek  and  above  the  month  of  the 
Roaring  Fork,  or  from  the  tributaries  which  flow  there- 
unto on  the  north  side  in  that  part  thereof  aforesaid, 
and  all  lands  included  within  that  portion  of  the  basin 
of  the  Grand  river  above  described,  and  lying  on  the 
north  side  thereof,  not  irrigated  by  waters  taken  from 
any  other  stream  or  any  other  part  of  the  Grand  river, 
or  diverted  on  the  south  side  thereof,  shall  constitute 
Water  District  Number  Fifty-three. 

SEC.  65.  All  lands  irrigated  by  waters~taken  from 
the  Little  Snake  river  above  the  most  westerly  inter- 
section thereof  with  the  State  line,  or  from  the  tribu- 
taries thereof  flowing  thereunto  in  that  part  thereof 
aforesaid,  and  all  lands  lying  within  that  part  of  the 
basin  of  said  stream  above  described,  not  irrigated  by 
waters  taken  from  any  other  stream,  shall  constitute 
Water  District  Number  Fifty-four. 

SEC.  66.  All  lands  irrigated  by  waters  taken  from 
the  Yam  pa  river  below  Water  District  Number  Forty- 
four,  or  from  the  tributaries  which  flow  thereto  in  that 
part  thereof,  and  not  included  in  Water  District  Number 
Fifty-four,  and  all  that  part  of  the  basin  of  the  Yampa 
river  above  described,  not  irrigated  6y  waters  taken 
from  any  other  stream,  or  any  other  portion  of  the 


100  REPORT   OF  THE   COMMISSION 

Yampa  river,   shall   constitute  Water  District  Number 
Fifty-five. 

SEC.  67.  All  lands  irrigated  by  waters  taken  from 
the  Green  river  or  the  tributaries  thereof,  (except  the 
Yampa),  and  all  lands  included  within  the  basin  of  the 
Green  river,  (except  lands  within  the  basin  of  the 
Yampa),  not  irrigated  by  waters  taken  from  any  other 
stream,  shall  constitute  Water  District  Number  Fifty-six. 

SEC.  68.  All  lands  irrigated  by  waters  taken  from 
the  Yampa  river  above  Water  District  Number  Forty- 
four,  and  below  Elk  creek,  or  from  the  tributaries  which 
flow  to  that  part  thereof  aforesaid,  and  all  lands  included 
within  that  portion  of  the  basin  of  the  Yampa  river  above 
described,  not  irrigated  by  waters  taken  from  any  other 
stream  or  any  other  part  of  the  Yampa  river,  shall  con- 
stitute Water  District  Number  Fifty-seven. 

SEC.  69.  All  lands  irrigated  by  waters  taken  from 
the  Yampa  river  above  Water  District  Number  Fifty- 
seven,  or  from  the  tributaries  which  flow  into  that  part 
thereof  aforesaid,  and  all  lands  included  within  that 
portion  of  the  basin  of  the  Yampa  river  above  described, 
not  irrigated  by  waters  taken  from  any  other  stream, 
shall  constitute  Water  District  Number  Fifty-eight. 

SEC.  70.  All  lands  irrigated  by  waters  taken  from 
the  Gunnison  river  above  the  mouth  of  the  Tomichi,  or 
from  the  tributaries  which  flow  into  that  part  thereof 
aforesaid,  and  all  lands  irrigated  by  waters  taken  from 
the  Gunnison  river  on  the  north  side  thereof  below 
Tomichi  creek,  and  above  Water  District  Number  Forty, 
or  from  the  tributaries  which  flow  to  that  part  thereof 
aforesaid  from  the  north,  and  all  lands  included  within 
that  portion  of  the  basin  of  the  Gunnison  above  the 
mouth  of  the  Tomichi,  and  that  portion  thereof  lying  on 
the  north  side  o5  the  stream  below  the  mouth  of  the 
Tomichi  and  above  Water  District  Number  Forty,  not 
irrigated  by  waters  taken  from  any  other  stream  or  any 


NCERNING    Till-:    WATERS    <)!•    THE    STATE.       KM 

other  portion  of  the  (iunnison,  or  diverted  on  the  south 
side  thereof  below  the  Tomichi,  shall  constitute  Water 
District  Number  Fifty-nine. 

SEC.  71.     All  lands  irrigated  by  waters  taken  from 
the  San  Miguel  river  or  the  tributaries  thereof,  and  all 
-  included  within  the  basin  of  said  stream,  not  irrf- 
gated  by  waters  taken  from  any  other  stream,  shall  con- 
stitute Water  District  Number  Sixty. 

SEC.  72.  All  lands  irrigated  by  waters  taken  from 
the  Dolores  river  above  the  San  Miguel  river  or  from 
the  tributaries  which  flow  to  that  part  thereof  aforesaid, 
and  all  lands  included  within  that  portion  of  the  basin 
of  the  Dolores  river  above  describecT,  not  irrigated  by 
waters  taken  from  any  other  stream,  shall  constitute 
Water  District  Number  Sixty-one. 

SEC.  73.  All  lands  irrigated  by  waters  taken  from 
the  Gunnison  river  on  the  south  side  thereof  below  the 
mouth  of  the  Tomichi  and  above  Water  District  Num- 
ber Forty  or  from  the  tributaries  which  flow  thereunto 
from  the  south,  in  that  part  thereof  aforesaid,  and  all 
lands  included  within  that  portion  of  the  basin  of  the 
Gunnison  above  described  lying  on  the  south  side 
thereof,  and  not  irrigated  by  waters  taken  from  any 
other  stream  or  any  other  portion  of  the  Gunnison,  or 
diverted  on  the  north  side  thereof,  shall  constitute  Water 
District  Number  Sixty-two. 

SEC.  74.  All  lands  irrigated  by  waters  taken  from 
the  Dolores  river  below  the  San  Miguel  river,  or  from 
the  tributaries  which  flow  to  that  part  thereof  aforesaid, 
and  all  lands  included  within  that  part  of  the  basin  of 
the  Dolores  river  above  described,  not  irrigated  by 
waters  taken  from  any  other  stream  or  any  other  part  of 
the  Dolores  river,  shall  constitute  Water  District  Num- 
ber Sixty-three. 

SEC.  75.  All  lands  irrigated  by  waters  taken  from 
the  South  Platte  river  below  the  western  boundary  line 


102  REPORT   OF  THE   COMMISSION 

of  Washington  county,  or  from  the  tributaries  flowing 
to  tVat*  part  thereof  aforesaid,  and  all  lands  included 
within  that  portiojj  of  the  basin  of  the  South  Platte 
river  above  described,  not  irrigated  by  waters  taken  from 
any  other  stream  or  from  any  other  portion  of  the  South 
Platte  river,  shall  constitute  Water  District  Number 
Sixty-four. 

SEC.  76.  All  lands  irrigated  by  waters  taken  from 
the  Middle  and  North  Forks  of  the  Republican  river,  or 
from  Sandy  creek,  Frenchman's  creek  or  the  tributaries 
of  either  of  said  streams,  and  all  lands  included  within 
the  basin  of  either  of  said  streams,  not  irrigated  by  waters 
taken  from  any  other  stream,  shall  constitute  Water  Dis- 
trict Number  Sixty-five. 

SEC.  77.  All  lands  irrigated  by  waters  taken  from 
the  Dry  Cimarron  or  the  tributaries  thereof,  and  all 
lands  included  within  the  basin  of  said  stream,  not  irri- 
gated by  waters  taken  from  any  other  stream,  shall  con- 
stitute Water  District  Number  Sixty-six. 

SEC.  78.  All  lands  irrigated  by  waters  taken  from 
the  Arkansas  river  below  the  mouth  of  the  Purgatoire, 
or  from  the  tributaries  flowing  to  that  part  thereof 
aforesaid,  and  all  lands  included  within  that  part  of  the 
basin  of  the  Arkansas  river  above  described,  not  irrigated 
by  waters  taken  from  any  other  stream  or  any  other 
portion  of  the  Arkansas  river,  shall  constitute  Water 
District  Number  Sixty-seven. 

SEC.  79.  Wherever  the  waters  of  any  stream  being 
diverted  therefrom  on  one  side  thereof  are  applied  first 
to  the  irrigation  of  lands  on  the  side  of  diversion,  and 
are  afterwards  carried  across  the  stream  for  the  irrigation 
of  lands  on  the  other  side  thereof,  all  lands  irrigated  by 
the  waters  so  diverted,  notwithstanding  the  foregoing 
delineations  of  the  Water  Districts,  shall  be  deemed  and 
taken  to  be  within  the  Water  District  wherein  is  situate 
the  head  of  the  ditch,  canal  or  other  works  of  diversion. 


x 


CONCKKNINV,    Till.    \VATKRS    <>F    Till'     STATE. 


SEC.  80.  Other  Water  Districts  may  be  formed  from 
time  to  time  by  order  of  the  Governor,  either  by  consoli- 
dation or  division  of  any  of  the  Districts  above  d 
nated,  or  otherwise,  upon  the  recommendation  of  the 
Superintendent  of  Irrigation  for  the  Water  Division  in 
which  the  proposed  new  district  is  'to  be  formed,  approved 
by  the  State  Engineer,  and  upon  the  formation  of  such 
new  district  the  Governor  may  in  his  discretion  forthwith 
appoint  some  Water  Commissioner  for  such  district,  to 
hold  until  recommendations  can  be  made  by  the  State 
Engineer. 


ARTICLE   VIII. 

OF    THE   ADJUDICATION  OF   RIGHTS    AND    PRIORITIES    OF   RIGHT    TO 
DIVERT,    CARRY   OR   STORE  WATER. 

SECTION  I.  In  order  to  the  proper  and  certain  ascer- 
tainment of  the  amount  of  water  at  any  time  appropri- 
ated by  means  of  any  ditch,  conduit,  reservoir  or  other 
works  for  the  diversion,  carriage  or  storing  of  water, 
and  the  several  dates  and  amounts  of  such  appropri- 
ations respectively,  and  the  names  of  the  proprietors  of 
such  works,  and  the  times  during  which  they  are  sev- 
erally entitled  to  divert,  convey  or  store  such  waters 
and  for  the  prevention  and  avoidance  of  controversies 
and  the  multiplicity  of  actions  touching  such  matters 
in  the  several  Water  Divisions,  exclusive  jurisdiction 
for  the  ascertainment  and  settlement  of  the  several 
rights  and  priorities  of  right  of  the  proprietors  of  such 
works  by  means  thereof  to  divert,  convey  or  store  such 
waters,  is  hereby  conferred  upon  the  following  Courts 
within  the  several  Water  Divisions;  that  is  to  say: 

For  the  South  Platte  Division,  upon  the  District 
Court  of  the  County  of  Weld;  for  the  Arkansas  Divis- 
ion, upon  the  District  Court  of  the  County  of  Pueblo; 
for  the  Rio  Grande  Division,  upon  the  District  Court 
of  the  County  of  Conejos;  for  the  San  J^uan  Division, 
upon  the  District  Court  of  the  County  of  La  Plata;  for 


1O4  REPORT   OF   THE   COMMISSION 

the  Grand  River  Division,  upon  the  District  Court  of 
the  County  of  Garfield;  for  the  White  River  Division, 
upon  the  District  Court  of  the  Count}'  of  Rio  Blanco; 
for  the  North  Platte  Division,  upon  the  District  Court 
of  the  County  of  Larimer;  for  the  Republican  Division, 
upon  the  District  Court  of  the  County  of  Kit  Carson. 

SEC.  2.  The  Clerks  .of  the  several  District  Courts 
wherein  any  depositions  taken  under  or  pursuant  to  the 
act  entitled,  "An  act  to  regulate  the  use  of  water  for 
irrigation,  and  providing  for  settling  the  priority  of  right 
thereto,  and  for  payment  of  the  expenses  thereof, 
and  for  payment  of  all  costs  and  expenses  incident 
to  said  regulation  of  use,"  approved  February  i9th, 
1879,  or  the  act  entitled,  "An  act  to  make  further  pro- 
visions for  settling  the  priority  of  rights  to  the  use  of 
water  for  irrigation  in  the  District  and  Supreme  Courts, 
and  for  making  record  of  such  priorities,  and  for  pay- 
ment of  costs  and  expenses  incident  thereto,"  approved 
February  23d,  1881,  or  the  acts  amendatory  to  -either 
of  said  acts,  may  be  remaining  on  file,  and  the  Clerks 
of  the  several  District  Courts  wherein  hath  been  hereto- 
fore entered  any  decree  for  the  adjudication  of  the  prior- 
ities of  right  to  the  use  of  water  for  irrigation  between 
the  ditches,  canals  and  reservoirs  in  any  Water  District, 
shall  within  thirty  days  after  the  approval  of  this  act, 
transmit  all  such  depositions  and  all  reports  of  the  refe- 
ree appointed  pursuant  to  either  of  the  said  acts,  together 
with  a  copy  of  every  such  decree,  certified  under  the  seal  of 
such  Court,  into  the  office  of  the  Clerk  of  the  District 
Court  whereunto  by  this  act  jurisdiction  is  committed, 
for  the  ascertainment  and  settlement  of  the  rights  and 
priorities  of  right  among  the  several  appropriators  of 
water  in  the  Water  Division  wherein  such  Water  Dis- 
trict is  situate. 

SEC.  3.  The  reasonable  fees  of  the  Clerks  of  said 
Courts  for  copying  and  certifying  such  decrees  shall  be 
paid  by  the  several  counties  wherein  the  said  Water  Dis- 


CONCI-RNINV,    Till-     \YATHKS    OP    Till-    STATE,        M  >  ."> 

tricts  are  respectively  situate;,  in  such  proportions  as  mav 
be  directed  by  the  District  Court  where  such  copies  of 
decrees  may  be  filed  in  pursuance  hereof. 

SKC.  4.  If  any  person  shall  desire  or  propose  to 
widen,  deepen  or  in  any  manner  enlarge  or  increase  the 
capacity  of  any  ditch,  conduit  or  reservoir  named  in  any 
of  the  decrees  heretofore  entered  in  any  of  the  District 
Courts,  for  settling  the  priorities  of  right  to  the  use  of 
water  for  irrigation  in  any  Water  District,  prior  to  the 
entry  of  the  decree  directed  by  this  act  for  adjudicating 
and  settling  the  rights  and  priorities  of  the  several 
appropriators  of  water  in  such  Water  Division,  he  shall, 
before  commencing  such  work  of  enlargement,  cause 
such  ditch,  conduit  or  reservoir  to  be  measured  and 
rated  or  the  capacity  thereof  to  be  estimated  as  required 
by  this  act,  and  the  certificate  of  such  measurement  and 
rating  or  estimate  of  capacity  to  be  approved  by  the 
State  Engineer,  and  the  proprietors  of  such  works  shall 
thereupon  make  in  duplicate  their  certificate  setting 
forth  the  fact  of  such  measurement  and  rating  or  such 
estimate,  and  the  capacity  of  such  ditch,  conduit  or 
reservoir,  as  thereby  ascertained,  and  the  purpose  and 
desire  to  enlarge  the  same,  expressly  declaring  that  they 
do  not  nor  will  claim  to  be  entitled,  by  means  or  by  rea- 
son of  any  decree  theretofore  made,  to  any  greater  quan- 
tity of  water  than  the  amount  set  down  in  such  certifi- 
cate of  rating  or  estimate;  and  that  save  as  to  the 
amount  of  water  set  down  in  such  certificate  of  rating  or 
estimate,  they  expressly  renounce,  in  favor  of  the  public, 
all  benefits  of  such  former  decree.  Every  such  certificate 
of  renunciation  shall  be  subscribed  and  acknowledged  as 
well  by  the  proprietor  or  proprietors  of  the  ditch,  conduit 
or  reservoir  proposed  to  be  enlarged,  or  in  case  of  any 
ditch,  conduit  or  reservoir  owned  by  any  corporation,  by 
the  President  or  other  chief  officer  thereof,  being  there- 
unto first  authorized  by  resolution  of  the  Board  of 
Directors,  as  by  the  other  person  or  persons,  if  any  desir- 
1 1 


106  REPORT  OF   THE   COMMISSION 

ing  or  proposing  such  enlargement;  and  one  such  orig- 
inal thereof  shall  be  deposited  with  the  Clerk  of  the 
Court  to  which  by  this  act  is  committed  jurisdiction  for 
the  ascertainment  and  settlement  of  the  several  rights 
and  priorities  of  those  entitled  to  the  enjoyment  of  water 
in  the  Water  Division,  and  the  other  thereof  shall  be 
filed  and  recorded  in  the  office  of  the  Recorder  of  the 
county  wherein  the  head  of  such  ditch  is  situate.  Any 
enlargement  of  any  such  ditch,  conduit,  reservoir  or 
other  works  in  violation  hereof  shall  be  deemed  to  be 
unlawful,  and  shall,  in  the  distribution  of  water  in  such 
Water  Division,  be  disregarded;  and  any  person  making 
any  such  enlargement  of  any  such  ditch,  conduit, 
reservoir  or  other  works,  contrary  to  the  provisions 
hereof,  shall  be  deemed  guilty  of  a  misdemeanor  and  on 
conviction  thereof  shall  pay  a  fine  of  not  less  than  one 
thousand  dollars  and  not  exceeding  five  thousand  dollars. 

SEC.  5.  The  State  Engineer  shall,  as  soon  as  may 
be  after  the  passage  of  this  act,  transmit  to  the  Water 
Commissioner  of  each  Water  District  and  to  the  Super- 
intendent of  each  Water  Division,  and  to  the  owner  of 
each  ditch,  conduit  or  reservoir  theretofore  constructed, 
as  far  as  their  names  and  places  of  residence  shall  be 
known  to  him,  printed  instructions  touching  the  manner 
of  construction  of  the  rating-flumes  and  other  measur- 
ing devices,  the  place  or  places  where  the  same  shall  be 
located,  the  manner  of  making  the  measurement,  rating, 
estimate  of  capacity,  survey  and  plat  of  the  ditches, 
conduit,  reservoir  and  other  works  for  the  diversion, 
carriage  or  storage  of  water,  hereby  required/ and  such 
other  instructions  as  to  him  shall  seem  fit  or  necessary 
for  the  guidance  of  such  officers  or  the  Deputy  Irriga- 
tion Engineers  in  the  discharge  of  their  duties  here- 
under.  The  State  Engineer  shall  also  prescribe  to  the 
Assistant  State  Engineers  and  Deputy  Irrigation  Engin- 
eers a  uniform  formula  to  be  used  in  estimating  the 
capacity  of  works  for  the  conveyance  of  water. 


CONVKRNING    THI-     \VATKRS    OF    Till-    STATE,       1<>7 

SEC.  6.  The  proprietors  of  any  ditch,  conduit,  re 
voir  or  other  works,  constructed  or  used  for  the  diver- 
sion, carrying  or  storage  of  water  for  irrigation,  desiring 
to  procure  an  adjudication  of  their  rights  in  that  behalf, 
shall  cause  such  works  to  be  measured  and  rated  or  the 
capacity  thereof  to  be  estimated  as  required  by  this  act, 
and  the  certificate  of  such  measurement  and  rating  .or 
estimate  of  capacity  to  be  approved  by  the  State  Engin- 
'eer  and  shall  also  procure  a  survey  and  map  of  such 
works,  to  be  made  by  some  Assistant  State  Engineer  or 
Deputy  Irrigation  Engineer,  by  him  employed  for  that 
purpose.  Every  such  Assistant  State  Engineer  or  Dep- 
uty Irrigation  Engineer  shall,  at  the  time  thereof,  take 
in  writing  careful  notes  of  every  such  survey  by  him 
made,  showing  in  each  case  the  name  of  such  ditch, 
conduit,  reservoir  or  other  works,  the  name  or  names  of 
the  proprietors  thereof,  or  of  the  association  or  corpora- 
tion which  is  proprietor  thereof,  the  date  of  such  survey, 
the  names  of  those  assisting  therein,  and  showing, 
either  by  reference  to  the  public  surveys,  or  where  the 
said  works  are  on  unsurveyed  lands,  to  conspicuous  and 
permanent  natural  monuments,  the  place  of  the  head  of 
such  ditch,  conduit,  or  other  works,  the  stream  or 
sources  of  supply  wherefrom  water  is  taken,  the  places 
of  the  head-gate  and  rating-flume,  the  width,  depth, 
and  grade  of  such  ditch,  or  conduit,  at  so  many  places 
as  may  be  necessary  to  reasonably  ascertain  the  carrying 
capacity  thereof,  the  greatest  depth  of  water  which  can 
safely  be  carried  at  each  of  such  places  and  the  form  of 
the  cross-sections  to  high-water  mark,  the  courses  and 
distances  of  such  ditch,  conduit  or  other  works  as  sur- 
veyed, the  several  sections  of  land,  according  to  the 
public  surveys,  over  which  the  same  is  constructed,  the 
location  of  every  such  reservoir  and  the  exterior  line 
thereof  when  filled  to  high-water  mark,  as  nearly  as 
may  be,  the  capacity  of  such  reservoir,  a  description  of 
the  embankment  thereof,  the  places  of  inlet  and  outlet, 
and  the  waste- ways  therefrom,  and  any  other  matter  or 


10<S  REPORT   OF  THE   COMMISSION 

thing  which  the  State  Engineer  may  require  to  be  set 
down^n  such  notes  of  survey.  Every  such  Assistant  State 
Engineer  or  Deputy  Irrigation  Engineer,  shall  also  pre- 
pare a  map  of  every  such  ditch,  conduit,  reservoir  or 
other  works,  by  him  surveyed  as  aforesaid,  and  shall, 
as  soon  as  may  be  after  the  completion  thereof,  transmit 
to  the  State  Engineer  a  copy  of  said  field  notes  and  of 
the  said  map,  with  affixed  thereto  his  affidavit  that  the 
survey  therein  represented  was  by  him  actually  made  in. 
the  field  at  the  date  set  down  therein,  that  the  same  is  a 
true  copy  of  the  field  notes  of  such, survey  by  him  taken 
at  the  time,  and  that  the  place's,  courses,  distances,  grade 
and  cross-sections  of  said  ditch  are  truly  set  forth  in  the 
said  notes,  as  he  verily  believes. 

SEC.  7.  Every  such  map  shall  be  upon  a  scale  suffi- 
cient to  conveniently  show  the  same  matters  and  things 
required  to  be  set  down  in  the  notes  of  survey,  and  on  a 
scale  of  not  less  than  two  thousand  feet  to  the  inch,  and 
shall  be  made  upon  sheets  furnished  from  the  office  of 
the  State  Engineer. 

SEC.  8.  The  State  Engineer  shall,  on  request,  cause 
blanks  for  the  notes  of  such  surveys,  and  blank  sheets 
for  the  preparation  of  the  maps  thereof,  to  be  delivered 
to  each  Assistant  State  Engineer  and  Deputy  Irrigation 
Engineer  employed  for  the  purpose. 

SEC.  9.  The  State  Engineer  shall  cause  all  such 
maps  and  notes  of  surveys  to  be  carefully  examined,  and 
if  approved  by  him  shall  endorse  his  approval  thereon, 
and  carefully  preserve  the  same  in  his  office.  In  case 
the  survey  of  any  ditch,  conduit  or  reservoir  be  disap- 
proved by  the  State  Engineer  he  shall  return  the  same 
for  correction  by  the  same  ,or  other  Assistant  or  Deputy 
Irrigation  Engineer,  until  a  proper  survey  and  map  of 
the  work  be  made  and  returned;  Provided,  however, 
That  no  such  survey  or  map  need  be  made  where  the 
same  information  is  contained  in  the  maps  and  state- 
ments theretofore  filed  in  the  office  of  the  State  Engineer 


CONCERNING  Till-    WATI-KS   OP    tH  I.       KM) 

touching  any  ditch,  conduit  or  other  works,  to  the  s 
faction  of  the  State  Engineer. 

SKC.  10.  The  State  Engineer  shall  canse  an  index 
of  the  several  surveys  of  the  ditches,  conduits  and  other 
works  for  the  diversion,  conveyance  or  storage  of  water, 
as  the  same  are  filed  in  his  office,  to  be  prepared  and 
always  thereafter  kept  in  his  office  so  that  the  notes  of 
such  surveys  and  the  maps  thereof  may  be  conveniently 
found  and  examined. 

SEC.  ii.  As  soon  as  may  be  after  the  completion 
and  approval  of  the  survey  of  any  such  works,  the  State 
Engineer  shall  cause  copies  of  the  map  and  field  notes 
thereof,  certified  by  him  under  his  seal  of  office,  to  be 
transmitted  to  the  Clerk  of  the  Court  to  which  by  this 
act  is  committed  jurisdiction  for  settling  the  rights  and 
priorities  of  the  appropriators  of  water  in  such  Water 
Division. 

SEC.  12.  Whenever  the  proprietors  of  any  ditch, 
conduit,  reservoir  or  other  works  for  the  diversion, 
carriage  or  storing  of  water  for  the  irrigation  of  lands, 
shall  cause  the  same  to  be  measured  and  rated  by  some 
Assistant  State  Engineer,  or  Deputy  Irrigation  Engi- 
neer, in  pursuance  hereof,  and  shall  cause  dupli- 
cates of  the  certificate  of  such  measurement  and 
rating  verified  by  such  Engineer,  to  be  transmitted 
to  the  State  Engineer,  the  State  Engineer  shall  forth- 
with examine  such  certificate  of  measurement  and  rating, 
and  if  he  shall  approve  the  same  shall  cause  one  copy 
thereof  certified  by  him  under  his  seal  of  office  to  be 
transmitted  to  the  Clerk  of  the  District  Court  to  which, 
in  pursuance  of  this  act,  jurisdiction  to  adjudge  and 
settle  the  rights  and  priorities  of  the  several  appropria- 
tors of  water  in  such  Water  Division  is  committed,  and 
the  other  thereof  he  shall  file,  record  and  carefully  pre- 
serve in  his  office.  If  the  State  Engineer  shall  disap- 
prove the  measurement  and  rating  of  any  ditch,  conduit, 
reservoir  or  other  works,  he  shall  cause  the  fact  of  such 


110  REPORT  OF  THE  COMMISSION 

disapproval  to  be  certified  to  the  Superintendent  of  such 
ditch,  conduit  or  other  works,  and  shall  direct  further 
measurement  and  rating-  of  such  works,  either  by  the 
same  or  other  Assistant  State  Engineer,  or  Deputy  Irri- 
gation Engineer,  as  he  may  specify.  Upon  the  comple- 
tion of  such  second  measurement  and  rating,  the  officer 
acting  in  that  behalf  shall  make  his  certificate  thereof, 
setting  forth  the  same  matters  above  prescribed,  and 
shall  transmit  the  same  to  the  State  Engineer,  and  the 
State  Engineer  shall  take  like  proceedings  in  respect  of 
such  second  certificate  as  prescribed  in  respect  of  the 
first.  Whenever  it  shall  appear  to  the  satisfaction  of 
the  State  Engineer  that  the  waters  of  the  stream  or 
source  of  supply  wherefrom  any  ditch,  conduit  or  reser- 
voir receives  water,  are  so  low  at  the  head  of  the  ditch, 
conduit  or  other  works,  that  the  same  can  not  be  filled, 
or  that  for  any  reason  the  same  can  not  be  measured  and 
rated,  as  hereby  required,  the  proprietors  of  such  works 
may  cause  the  same  to  be  measured  by  not  less  than 
three  disinterested  persons  (either  Assistant  State  Engi- 
neers or  Deputy  Irrigation  Engineers),  and  the 
capacity  thereof  estimated  and  certified  by  such  three 
persons,  and  their  certificate  of  such  measurement  and 
estimate  of  the  capacity  of  such  works  verified  by  them 
and  approved  by  the  State  Engineer  shall  be  of  like 
effect  as  the  certificate  of  measurement  and  rating  herein 
above  first  required;  Provided,  however,  That  the  State 
Engineer  shall  not  accept  or  approve  any  certificate  of 
estimate  as  hereinabove  provided,  without  first  ascertain- 
i  ig  to  his  own  satisfaction  the  impossibility  of  rating 
such  ditch,  conduit  or  other  works. 

SEC.  13.  The  proprietors  of  every  ditch,  conduit, 
reservoir  or  other  works  for  the  diversion,  conveyance, 
or  storage  of  water  for  irrigation,  within  any  Water 
Division',  desiring  the  establishment  of  their  right  in 
that  behalf,  as  herein  provided,  shall  file  with  the  Clerk 
of  the  District  Court,  to  which  by  this  act  is  committed 


CONCERNING  TIIM   \VATI-RS  ni-    TIIIv    STATE,       1  1  1 

jurisdiction  for  ascertaining  and  settling  the  rights  and 
priorities  of  the  several  appropriators  of  water  in  such 
Water  Division,  a  statement  of  their  claim  in  that 
behalf,  entitled  of  the  proper  Court  and  "In  the  matter 
of  the  Adjudication  of  the  Rights 'and  Priorities  of  the 

Appropriators  of  Water  for  Irrigation  in  the Water 

Division  of  the  State  of  Colorado;"  which  statement 
shall  set  forth  the  names  of  the  proprietors  of  such 
ditch,  conduit  or  other  works;  the  name  of  the  Superin- 
tendent thereof,  appointed  in  pursuance  of  this  act  and 
the  post-office  address  of  such  Superintendent;  all  names 
by  which  such  ditch,  conduit,  reservoir  or  other  works 
hath  theretofore  been  known,  and  the  name  by  which 
the  same  is  then  and  thereafter  to  be  known;  the  time 
when  such  works  were  commenced  and  completed, 
fixing  the  day,  month  and  year  as  near  as  may  be;  the 
time  of  commencement  and  completion  of  each  enlarge- 
ment or  extension  thereof,  and  the  number  of  acres  of 
laud  theretofore  actually  irrigated,  by  water  from  such 
works  as  originally  constructed;  the  increased  area,  if 
any,  irrigated  after  each  enlargement,  and  the  number 
of  acres  proposed  to  be  irrigated  therefrom;  the  par- 
ticular months  or  parts  of  months  in  each  year  during 
which  the  appropriators  of  such  works  claim  to  be 
entitled  to  the  use  of  water  diverted,  carried  or  stored 
by  means  thereof  for  irrigation;  and  the  times  when,  in 
each  year,  the  proprietors  of  any  such  reservoir  have 
theretofore  customarily  filled  the  same.  Every  such 
statement  shall  be  subscribed  by  some  one  or  more  of 
the  proprietors  of  such  ditch,  conduit  or  other  works, 
or  the  superintendent  or  manager  thereof. 

SEC.  14.  At  any  time  after  the  first  day  of  Septem- 
ber, A.  D.  1891,  any  person  claiming  to  be  interested 
in  the  question,  as  the  owner  of  any  ditch,  conduit  or 
reservoir  for  the  diversion,  carriage  or  storing  of  water 
in  such  Water  Division,  or  as  a  consumer  of  water 
therefrom  for  irrigation,  may  present  to  the  District 


1  1  -2  REPORT   OF  THE   COMMISSION 

Court  having  jurisdiction  in  such  Water  Division  pur- 
suant hereto,  his  petition  or  application  in  writing, 
praying  the  Court  to  proceed  to  an  adjudication  of  the 
rights  and  priorities  of  right  to  the  use  of  water  for 
irrigation  between  the  -several  appropriators  in  such 
Division. 

SEC.  15.  Every  such  petition  shall  be  entitled:  uln 
the  matter  of  the  Adjudication  of  the  Rights  and  Prior- 
ities of  the  Appropriators  of  Water  for  Irrigation  in  the 

Water   Division   of    the   State   of    Colorado." 

Upon  the  filing  of  such  petition,  the  Court,  if  the  same 
be  presented  in  term  time,  or  the  Judge,  if  in  vacation, 
shall  make  and  cause  to  be  entered  of  record  an  order 
specifying  the  time,  not  less  than  sixty  days  thereafter, 
when  the  same  will  be  heard  and  when  the  Referee  will 
be  appointed  pursuant  to  this  act,  and  shall  thereupon 
direct  the  Clerk  to  issue  a  citation  under  the  seal  of  the 
Court  directed:  "To  all  whom  it  may  concern,"  recit- 
ing the  filing  of  such  petition,  and  the  substance 
thereof,  and  citing  all  concerned  to  attend  and  show 
cause  against  the  said  petition  at  the  time  so  appointed. 
The  Clerk  of  such  Court  shall  cause  one  original  of 
such  citation  to  be  transmitted  to  the  Water  Commis- 
sioner of  each  Water  District  in  such  Division,  together 
with  a  sufficient  number  of  copies  thereof  for  service 
upon  the  superintendent  or  proprietor  of  each  ditch, 
conduit,  reservoir  or  other  works,  the  proprietors 
whereof  shall  have  filed  in  his  office  the  statement 
required  by  the  thirteenth  section  of  this  Article,  and 
shall  publish  a  copy  of  such  citation  in  one  newspaper 
in  each  Water  District  of  such  Division,  where  any 
newspaper  is  published,  for  at  least  thirty  days  prior  to 
the  day  fixed  for  hearing.  He  shall  in  like  manner 
transmit  therewith  to  every  such  Water  Commissioner 
a  list  of  the  ditches,  conduits  and  other  works  for  the 
appropriation  of  water  in  behalf  whereof  the  statement 
required  by  the  thirteenth  section  hath  been  filed  with 


CONCI-.KNINC,    rm-.  VVATI  IATI- 


him.  The  Water  Commissioner  upon  receipt  thereof 
shall  forthwith,  not  less  than  five  days  prior  to  the  date 
appointed  therein  for  the  hearing  of  such  petition, 
deliver  to  the  superintendent  of  each  of  the  ditches, 
conduits  and  other  works  set  down  in  such  list,  or  to 
some  one  of  the  proprietors  thereof,  or  where  any  such 
ditch,  conduit  or  other  works  shall  be  owned  by  a  cor- 
poration, to  some  one  of  the  officers  of  such  corporation, 
one  copy  of  the  said  citation;  or,  if  as  to  any  such 
ditch,  conduit  or  other  works,  no  such  superintendent, 
proprietor  or  officer  be  found,  shall  post  a  copy  thereof 
at  the  head-gate  or  in  some  other  conspicuous  place 
thereon,  or  deliver  such  copy  at  the  usual  place  of  abode 
of  the  person  upon  whom  service  ought  to  be  made,  as 
aforesaid,  to  some  person  of  not  less  than  the  age  of 
fifteen  years,  if  any  such  be  found  thereat,  and  shall 
return  the  original  thereof  with  his  endorsement  of  the 
service  thereof,  thereon  endorsed  or  thereto  attached. 
Every  Water  Commissioner  serving  or  posting  any  such 
notice  shall  be  entitled  to  receive  therefor  the  same  fees 
and  mileage  allowed  by  law  to  the  Sheriff  of  the  county 
wherein  the  service  is  rendered  for  the  service  of  civil 
process  out  of  the  District  Court. 

SEC.  16.  Every  inhabitant  of  the  State  of  Colorado, 
and  all  other  persons  in  any  manner  interested  as  owner, 
lessee  or  otherwise,  in  any  works  in  this  State  for  the 
diversion,  carriage  or  storing  of  water  for  irrigation,  or 
as  a  consumer  of  water  for  irrigation  from  any  such 
works,  shall  be  deemed  in  law  to  have  notice  of  such 
petition,  and  to  be  party  thereto,  and  shall  be  entitled 
to  attend  either  in  person  or  by  counsel  before  the  Court 
or  Judge,  and  be  heard  to  show  cause  against  such  peti- 
tion and  touching  the  appointment  of  such  Referee;  as 
also  either  in  person  or  by  counsel,  before  the  Referee 
appointed  in  pursuance  hereof,  and  to  produce  evidence 
against  the  allowance  of  any  appropriation  claimed  by 
any  other  person  or  corporation  in  such  Water  Division, 

15 


114  REPORT  OF  THE   COMMISSION. 

and  shall  be  entitled  to  cross-examine  the  witnesses  pro- 
duced in  behalf  of  any  other  person  or  corporation 
touching  any  appropriation,  and  (compliance  with  the 
provisions  of  this  act  touching  the  survey,  measure- 
ment, rating  or  estimate  of  any  works  by  means  whereof 
,any  appropriation  of  water  is  claimed  in  his  behalf,  and 
touching  the  filing  of  the  statement  of  claim  in  that 
behalf,  being  shown,)  shall  be  allowed  to  produce  evi- 
dence before  such  Referee  in  support  of  such  claim  of 
appropriation,  and  shall  be  entitled  to  attend  and  be 
heard  in  such  District  Court  and  before  such  Referee  at 
all  proceedings  had  or  taken  in  pursuance  of  this  act. 

SEC.  17.  Upon  the  filing  of  such  petition  the  Court 
to  which  jurisdiction  is  hereby  committed  in  that  behalf 
shall  be  deemed  to  be  invested  with  jurisdiction  to  settle 
and  adjudicate  the  rights  and  priorities  of  the  several 
appropriators  of  water  for  irrigation  within  such  divis- 
ion, and  such  Court  or  the  Judge  thereof  at  the  time  and 
place  specified  in  the  order  in  that  behalf,  if  due  service 
of  the  said  citation  hath  not  been  had,  shall  continue 
the  matter  to  another  day,  and  direct  the  issue  of  an 
alias  citation  or  citations,  as  rriay  be  necessary.  Further 
continuances  of  the  matter  may  be  made  from  time  to 
time  and  pluries  citations  issued  until  service  be  had 
upon  all  persons  and  corporations  above  specified  to  be 
served  therewith.  Whenever  it  shall  appear  to  the 
Court  that  due  publication  of  said  citation  and  service 
thereof  upon  all  persons  or  corporations  who  have  filed 
with  the  Clerk  of  the  Court  their  statement  as  required 
by  the  thirteenth  section  of  this  Article  hath  been  had, 
the  Court  or  the  Judge  thereof  shall  hear  all  persons  who 
may  attend  to  oppose  the  said  petition,  and  unless  cause 
be  shown  to  the  contrary  appoint  some  fit  and  proper 
person  as  Referee  to  hear  and  report  to  the  Court  such 
evidence  as  may  be  produced  before  him  touching  the 
appropriations  of  water  for  irrigation,  and  the  rights  and 
priorities  of  the  several  appropriators  in  such  Water 


l-f 


CONCKRNINV,    TIN:    \V  ATI-IK'S    <>F    TIN-;    STATK.       1  1  f  > 

Division,  and  shrill  by  such  order  fix  the  times  and 
places  where  such  Referee  shall  attend  in  each  Water 
District  of  such  division  to  hear  evidence  touching  such 
appropriations. 

SKC.  18.  The  Court  or  the  Judge  thereof  may  from 
time  to  time  afterwards  specify  other  places  at  which 
the  Referee  shall  attend,  and  fix  the  times  of  his  attend- 
ance, or  may  specify  other  times  for  the  attendance  of 
the  Referee  at  any  of  the  places  first  named,  or  may 
direct  that  such  Referee  omit  to  attend  at  any  of  the 
'places  in  such  order  named;  Provided,  however,  That 
every  such  Referee  shall  be  required  to  attend  in  at  least 
one  place  in  each  Water  District. 

SEC.  19.'  Such  Court  or  the  Judge  thereof  shall  at 
the  same  time  and  place  appoint  some  attorney  of  good 
standing  to  attend  on  behalf  of  the  public  at  all  sittings 
of  the  said  Referee,  who  shall  be  known  as  the  State's 
Attorney  for  such  Water  Division,  and  whose  duties 
shall  be  as  hereinafter  specified. 

SEC.  20.  The  Court  in  the  appointment  of  the 
Referee  and  the  attorney  aforesaid,  shall  select  persons 
of  known  probity  and  capability,  for  their  respective 
offices,  and  persons  in  no  way  interested  in  any  ditch, 
conduit,  reservoir  or  other  works  for  the  diversion,  car- 
riage or  storing  of  water  for  irrigation  in  such  Water 
Division,  as  owner  thereof  in  whole  or  in  part,  or  as  the 
holder  of  stock  in  any  corporation,  the  owner  of  any 
such  works,  or  as  consumer  of  water  for  irrigation  from 
any  such  works.  Such  Referee  and  attorney  may  be 
appointed  from  among  the  inhabitants  of  such  Division 
or  from  any  other  portion  of  the  State.  Neither  such 
Referee  nor  such  attorney  shall,  during  his  continuance 
in  office,  be  counsel  or  attorney  for  the  proprietors  of 
any  ditch,  conduit,  reservoir  or  other  works,  for  the 
diversion,  conveyance  or  storage  of  water  in,  or  for  use 
in,  the  Water  Division  for  which  he  hath  been  appointed, 
or  person  claiming  to  be  entitled  to  the  use  of  water 


116  REPORT  OF  THE   COMMISSION 

therefrom  for  irrigation,  either  touching  the  matter  of 
their  claim  in  that  behalf,  or  other  matter  whatsoever. 

SEC.  21.  Every  order  made  in  pursuance  of  this 
Article  for  the  appointment  of  any  Referee  or  attorney, 
or  fixing  the  time  for  the  attendance  of  the  Referee  in 
any  Water  District  shall  be  entered  of  record;  or  if 
made  in  vacation  shall  be  subscribed  by  the  Judge  and 
filed  in  the  office  of  the  Clerk  of  the  Court,  and  by  him 
entered  in  the  records  of  the  Court. 

SEC.  22.  Every  such  Referee  and  attorney  shall  before, 
entering  upon  the  duties  of  his  office  cause  to  be  filed  in 
the  office  of  the  Clerk  of  such  Court,  his  oath  or  affirm- 
tion  to  support  the  Constitution  of  the  United  States 
and  of  the  State  of  Colorado  and  faithfully  perform  the 
duties  of  his  office. 

SEC.  23.  Every  State's  Attorney  shall  be  entitled  to 
the  same  orders  and  process  for  securing  the  attend- 
ance of  witnesses  as  allowed  to  any  'party  to  the  said 
proceeding.  Such  subpoenas  shall  be  served  by  the 
Sheriff  or  any  Constable  of  any  county  where  the  wit- 
ness may  be  found,  and  the  fees  for  such  service  shall  be 
paid  in  the  same  manner  as  hereinafter  provided  in 
respect  of  the  fees  of  such  witnesses. 

SEC.  24.  It  shall  be  the  duty  of  such  attorney  forth- 
with upon  his  appointment,  to  prepare  from  the  records 
in  the  office  of  the  Clerk  of  such  Court,  a  table  of  the 
several  ditches,  conduit,  reservoirs  and  other  works  in 
such  Water  Division  for  the  diversion,  carriage  or  stor- 
ing of  water  for  irrigation,  as  may  appear  by  the  state- 
ments of  the  proprietors  thereof  filed  in  the  office  of 
such  Clerk  as  required  by  this  act,  setting  forth  the 
names  of  the  proprietors  thereof  respectively,  the  name 
of  the  Superintendent  thereof,  and  the  several  matters 
required  to  be  set  down  in  such  statement,  and  the 
capacity  of  such  works  as  shown  by  the  certificate  of 
measurement  and  rating  thereof,  on  file  in  the  office  of 


//* 


iNCBRNlKG    Tin-    \\'AT!-.kS  01     Ti  !•;.      117 

the  Clerk  of  such  Court;  and  to  otherwise,  familiarize 
himself  with  the  said  ditches,  conduits,  reservoirs  and 
other  works  as  fully  as  may  be.  Whenever  in  any  case 
it  shall  appear  to  such  attorney  that  the  proprietors  of 
any  such  works  claim  by  the  statement  filed  with  the 
Clerk  of  the  Court,  in  pursuance  hereof,  an  excessive 
amount  of  water,  or  that  any  such  statement  is  false  in 
any  particular,  he  shall  use  his  best  endeavors  to  pro- 
cure and  produce  before  the  Referee  at  the  proper  time 
and  place,  evidence  of  the  falsity  of  such  claim  in  that 
behalf,  .and  to;  that  end  may  call  upon  the  State  Engi- 
neer to  cause  such  works  to  be  measured  and  rated  or 
the  capacity  thereof  estimated  in  the  manner  hereinbe- 
fore provided.  He  shall  attend  at  all  sittings  of  the 
Referee  and  cross-examine  on  behalf  of  the  public 
whenever  it  shall  appear  to  him  necessary,  all  witnesses 
produced  by  any  claimant  touching  his  appropriation, 
and  whenever  it  shall  appear  to  him  that  any  improper 
testimony  is  offered  or  produced  before  such  Referee, 
shall  at  once  object  thereto,  and  cause  his  objections  in 
that  behalf  to  be  noted  by  the  Referee,  and  shall  in  all 
things  to  the  best  of  his  ability  cause  the  truth  of  the 
matter  touching  every  such  claim  to  be  made  to  appear 
by  proper  testimony  before  the  Referee.  He  shall 
attend  before  the  District  Court  upon  the  hearing  of  the 
matter  upon  the  report  of  the  Referee,  and  there  present 
and  argue  all  objections  by  him  made  to  any  improper 
testimony  presented  before  the  Referee,  and  shall  fully 
and  fairly  advise  the  Court  to  the  best  of  his  ability  as 
to  the  rights  of  the  several  claimants,  so  that  no  injury 
be  done  to  any  claimant,  nor  any  excessive  appropria- 
tion or  false  date  of  priority  be  allowed  to  any  claimant. 

SEC.  25.  Forthwith,  or  as  soon  as  may  be  after  the 
entry  of  any  such  order  appointing  a  Referee,  or  any 
subsequent  order  specifying  the  times  and  places  at 
which  he  shall  attend  and  hear  testimony,  or  any  order 
vacating  any  previous  order  in  that  behalf,  the  Clerk  of 


118  REPORT   OF  THE   COMMISSION 

the  Court  shall  certify  and  transmit  to  such  Referee  a 
copy  thereof,  and  shall  by  advertisement  published  for 
the  space  of  thirty  days  next  after  the  entry  of  any  such 
order  first  appointing  the  Referee,  in  at  least  one  news- 
paper in  each  Water  District,  where  a  newspaper  is  pub- 
lished, give  notice  of  the  substance  of  such  order  and  of 
the  several  times  and  places  named  therein  for  the 
attendance  of  the  Referee. 

Wherever  in  any  case  an  order  shall  be  entered  by 
the  Court  or  the  Judge  thereof  appointing  any  different 
time  or  place  for  the  attendance  of  the  Referee,  in  any 
Water  District,  a  notice  of  such  order  and  of  the  several' 
times  and  places  named  therein  for  the  attendance  of  the 
Referee,  shall  be  prepared  by  the  Clerk,  and  at  least  five 
copies  thereof  transmitted  to  the  Water  Commissioner 
of  such  Water  District,  who  shall  cause  the  same  to  be 
conspicuously  posted  in  at  least  five  public  places  of  his 
District,  and  shall  return  to  the  Clerk  of  such  Court  an 
affidavit  of  the  fact  and  time  of  posting  such  notices  and 
the  several  places  where  the  same  were  posted,  attached 
to  a  copy  of  such  notice. 

SEC.  2,6.  At  the  several  times  and  places  mentioned 
in  such  order  or  orders,  the  Referee  so  appointed  shall 
attend,  and  shall  hear  and  reduce  to  writing  all  testi- 
mony which  may  be  offered  by  any  person  authorized, 
in  pursuance  hereof,  touching  the  date  of  commencement 
and  comp^tion  of  each  ditch,  conduit,  reservoir  or  other 
works  theretofore  constructed  in  such  Water  District  for 
the  irrigation  of  lands,  and  each  enlargement  thereof, 
if  any,  and  the  amount  of  water  diverted  or  stored  by 
means  of  any  such  works,  or  any  enlargement  thereof 
and  actually  applied  to  the  irrigation  of  lands,  and  the 
periods  and  times  for  which  during  each  year  the 
waters  may  have  been  used  from  such  works,  or  any 
of  them,  for  irrigating  and  the  lands  irrigated  thereby,  or 
touching  any  other  matter  or  thing  which  may  tend  to 
show  the  fact  or  date  of  the  appropriation  of  water  by 


IN.    \V.\TI-1<^    Ol  1  I'' 

any  appropriator,  the  amount  of  such  appropriation,  the 
periods  and  times  of  the  actual  enjoyment   of  the   water 
for  irrigation,  or  the    transfer  or  abandonment   by   any 
appropriates,  his  heirs  or  assigns  of  his  or  their  right  to 
tlie    enjoyment  of  water   by    him    or    them   previously 
appropriated   or  used;    /'wirfcct,   however,   That,   (save 
by  leave  of  the  Court  or  the  Judge  thereof),  no  evidence 
shall  be  given  before  any  such  Referee  of  the  appropria- 
tion of  waters  by  any  ditch,  conduit,  reservoir  or  other 
works,  unless  the  proprietors  of  such  works  shall  before 
the  day  first  appointed  for  the  sitting  of  the  Referee  in  the 
Water  District  wherein  such  works  may  be  situate,  have 
filed  the  statement  required  by  the  thirteenth  section  of 
this   Article,  nor  unless  such  proprietors  shall,  before 
the  day  named,  have  caused  such  woiks  to  be  surveyed, 
measured   and   rated   by  the    State   Engineer   or  some 
Deputy  Irrigation  Engineer,  or  the  capacity  thereof  to 
be  estimated,  in  pursuance  hereof,  nor  unless  the  map  and 
field  notes  of  such  survey  and   the  certificate  of  such 
rating  or  estimate  with  the  approval  of  the  State  Engi- 
neer shall,  in  pursuance  hereof,  be  certified  to  and  filed 
in  the  office  of  .the  Clerk  of  the  District  Court,  upon 
which  by  this  act  jurisdiction  is  conferred  to  adjudicate 
the  rights  and  priorities  of  the  several  appropriators  of 
water  within  the  Water  Division  wherein  such  works 
are  situate,  as  by  this  act  above  required;  And,  provided 
further,  That  nothing  herein   contained  shall  be  con- 
strued as  requiring  the  Court  .to  disregard  the  claims  of 
any  person  or  corporation  having  in  progress  any  ditch, 
conduit,  or  other  works  for  the  appropriation  of  water 
for  irrigation,  not  then  completed,  or  whereby  the  waters 
have   not    theretofore    been    appropriated    to    the    full 
capacity  of  such  works,  but  the  rights  of  all  such  per- 
sons shall  be  saved  as  provided  in  the  thirty-fifth  section 
of  this  Article. 

SEC.    27.      Every  such   Referee  shall  have  power  to 
administer  oaths  and  issue  subpoenas  for  witnesses  and 


1  20  REPORT   OF  THE   COMMISSION 

subpoenas  duces  tecum,  which  subpoenas  may  be  served 
by  any  person  whomsoever,  and  may  require  the  witness 
to  appear  at  any  place  appointed  by  the  order  of  the 
District  Court  for  the  attendance  of  such  Referee  and  at 
such  day  and  hour  as  may  be  named  therein.  He  shall 
proceed  in  all  respects  in  the  examination  of  witnesses 
as  is  or  may  be  provided  by  law  in  the  case  of  the  taking 
of  the  deposition  of  a  resident  witness  in  causes  pending 
in  the  District  Court;  Provided,  however,  that  unless 
any  person  attending  shall,  touching  any  question  or 
matter  make  request  to  the  contrary,  the  deposition  of 
every  witness  shall  be  reduced  to  writing  in  the  narra- 
tive form.  The  Referee  shall  receive  all  deeds,  certifi- 
cates and  other  documents  which  may  be  offered  by  any 
person  and  return  the  same  with  his  report;  or  in  case 
any  person  shall  produce  in  evidence  any  book,  docu- 
ment or  writing  which  shall  not  be  under  the  control  of 
the  party  desiring  the  benefit  thereof,  or  which  he  shall 
desire  to  retain  in  his  own  custody,  such  Referee  shall 
make  or  cause  to  be  made  a  true  copy  of  the  parts 
demanded,  and  shall  certify  the  same  and  transmit  such 
copies  together  with  the  evidence  concerning  the  same, 
as  part  of  the  evidence  in  the  case.  He  shall  also  note 
at  the  proper  place  all  objections  which  may  be  made  by 
any  person  to  any  question  propounded  to  any  witness, 
or  to  any  documentary  evidence  offered  by  any  person, 
and  certify  the  same  in  connection  with  such  testimony. 
He  shall  also  whenever  he  shall  deem  it  necessary  for 
the  ascertainment  of  the  truth  touching  any  point 
involved  in  the  matter  in  question,  examine  any  witness 
produced  before  him  so  as  to  ascertain  and  make  clear  as 
far  as  possible  the  date  of  commencement  of  each  ditch, 
conduit,  reservoir  or  other  works,  the  original  capacity 
thereof,  the  date  and  capacity  of  each  enlargement,  the 
time  spent  in  the  construction  of  such  works  and  each 
enlargement  thereof,  the  amount  of  water  actually  car- 
ried in  such  ditch,  conduit  or  other  works,  or  stored  in 
such  reservoir  as  originally  constructed  and  after  each 


(', 


• 

CONCF.KMNC;  Tin-   \VATI-:RS  <>F  Tin-   STATI-.     1  -2 1 

enlargement,  the  time  when  the  waters  diverted  thereby 
were  appropriated  and  applied  to  beneficial  uses,  the 
nature  of  the  work  as  to  difficulty  of  construction,  and 
all  other  facts  which  may  show  or  tend  to  show  the 
respective  rights  of  the  proprietors  of  the  several  ditches, 
conduits  and  other  works  in  such  Water  Division  in 
respect  to  the  water  diverted,  carried  or  stored  by  such 
works  or  by  any  enlargement  thereof,  and  their  several 
priorities  in  right  to  the  diversion,  carriage,  storage,  use 
or  enjoyment  of  the  water,  and  the  extent  to  which,  and 
the  periods  during  which  by  means. of  such  ditches,  con- 
duits, reservoirs  or  other  works  they  are  severally  efiti- 
tled  to  have  and  use'or  convey,  store  and  dispose  of  such 
waters  for  irrigation. 

SEC.  28.  Every  such  Referee  shall  give  reasonable 
opportunity  to  all  persons  entitled  to  be  heard  before 
him  to  attend  and  present  testimony  touching  their  sev- 
eral rights  and  priorities  in  respect  of  the  use  of  water 
for  irrigating  within  such  Water  Division.  No  testi- 
mony shall  be  heard  or  received  touching  any  ditch, 
conduit  or  reservoir,  or  any  appropriation  claimed  or 
any  right  to  water  by  means  or  in  respect  thereof,  save 
in  the  Water  District  wherein  is  situate  the  head  of  such 
ditch  or  conduit,  or  the  head  of  the  ditch  or  conduit 
supplying  such  reservoir,  unless  by  special  order  of  the 
Referee  on  cause  shown  and  after  notice  to  all  persons 
interested  in  asserting  or  opposing  such  claim,  which 
notice  shall  be  in  writing  and  shall  specify  the  day,  hour 
and  place  when  such  testimony  shall  be  produced,  and 
shall  be  served  at  least  six  days  prior  to  the  time 
appointed  for  producing  such  testimony;  but  the  Referee 
may  when  the  time  limited  for  his  attendance  at  any 
place  named  in  the  order  of  the  Court  shall  expire  with- 
out full  hearing  of  all  testimony  desired  to  be  produced 
before  him  by  any  person  entitled  to  be  heard,  adjourn 
the  further  taking  of  testimony  proposed  to  be  offered, 
to  any  other  time  and  place  appointed  in  the  order  of 

16 


122  REPORT   OF  THE   COMMISSION 

the  Court  in  that  behalf  for  his  attendance  in  the  same 
Water  District,  and  at  such  last  named  place  may  con- 
tinue until  all  testimony  shall  be  taken,  or  the  Court  or 
the  Judge  thereof  may  direct  the  further  attendance  of 
the  Referee  at  the  place  of  his  attendance  where  such 
testimony  was  offered.  The  Referee  shall  cause  all 
testimony  heard  by  him  to  be  taken  down  or  copied  in 
type- writing,  and  the  depositions  and  other  testimony 
touching  each  particular  ditch,  conduit,  reservoir  or 
other  works,  or  the  appropriation  thereby,  to  be  filed 
and  preserved  as  one  fi!e.  He  shall  from  time  to  time,  as 
tha>  hearing  proceeds,  make  an  index  of  the  several 
ditches,  conduits  and  other  works  and  right's  claimed, 
touching  which  testimony  shall  be  offered,  so  that  the 
same  may  be  conveniently  consulted,  and  the  testimony 
of  any  wit.ne.ss  touching  any  particular  claim  readily 
found,  and  such  depositions  and  other  testimony  and  the 
index  thereof  he  shall  preserve  and  have  with  him  at  all 
times  during  the  hearing,  and  during  all  such  times  and 
at  all  other  convenient  and  reas  mable  times,  shall  allow 
the  same  to  be  inspected  and  seen  and  copies  or  extracts 
thereof  to  be  made  by  any  person  desiring  so  to  do,  and 
upon  the  closing  of  the  testimony  the  Referee  shall 
return  the  same  with  the  index  aforesaid  and  the  report 
of  his  actings  and  doings  in  the  premises,  into  the  office 
of  the  Clerk  of  the  District  Court  wherein  he  was 
appointed  as  aforesaid,  and  shall  notify  the  Judge  of 
such  Court,  if  the  same  be  not  in  session,  of  the  fact  of 
the  filing  of  his  report. 

SEC.  29.  The  District  Court,  wherein  any  Referee 
or  State's  Attorney  hath  been  appointed  in  pursuance 
hereof,  or  the  Judge  of  such  District  Court,  may  at  any 
time  in  his  discretion,  and  in  case  it  shall  be  made  to 
appear  that  such  Referee  or  State's  Attorney  is  for  any 
reason  disqualified  for  the  duties  of  such  appointment, 
or  hath  been  guilty  of  any  disobedience  of  the  orders  of 
the  Court,  or  any  negligence,  partiality  or  wilfull  mis- 


r  9 


NCBRNING   Tin-    WATERS 


doing  in  the  discharge  of  the  duties  of  his  office,  shall, 
remove  such  Referee  or  State's  Attorney,  and  in  case  of 
any  siu-h  removal,  or  the  resignation  or  death  of  any 
State's  Attorney  or  Referee  before  the  completion  of  the 
whole  of  the  testimony  touching  the  appropriations  in 
the  Water  Division  to  which  he  shall  have  been  ap- 
pointed, the  proper  District  Court  or  the  Judge  thereof, 
shall  by  like  order,  as  in  the  first  instance,  appoint  a 
successor  to  such  State's  Attorney  or  Referee,  and,  if 
need  be,  appoint  other  times  and  places  than  those  here- 
tofore fixed  for  the  attendance  of  such  Referee  in  the 
several  Water  Districts  of  such  Water  Division;  and  all 
testimony  theretofore  taken  before  such  Referee,  and  all 
copies  of  plats,  certificates  of  measurements  and  rating, 
statements  of  claimants  and  other  documents  in  the 
hands  of  any  State's  Attorney  or  Referee,  appertaining 
to  his  office,  shall  by  such  State's  Attorney  or  Referee 
so  removed  or  resigning,  or  in  case  of  the  death  of  any 
State's  Attorney  or  Referee,  by  his  executor  or  other 
person,  into  whose  hands  the  same  shall  come,  be  deliv- 
ered to  the  successor  in  office  of  such  State's  Attorney 
or  Referee,  forthwith  upon  his  appointment  and  qualifi- 
cation. 

SEC.  30.  On  request  of  any  Referee  appointed  in 
pursuance  hereof,  the  Clerk  of  the  District  Court  in 
which  he  is  appointed  shall  cause  to  be  delivered  to  such 
Referee  the  depositions  mentioned  in  the  second  section 
of  this  Article,  or  any  thereof,  the  statements  of  all 
claimants  of  water  filed  with  him,  and  the  certified  cop- 
ies of  the  certificates  of  measurement  and  rating,  and 
of  the  maps  of  such  Water  Division,  and  forthwith 
afterwards,  upon  the  further  receipt  by  such  Clerk  of 
any  such  statements,  certificates  or  maps,  he  shall  cause 
the  same  to  be  transmitted  to  such  Referee.  He  shall 
in  every  case  require  of  such  Referee,  at  the  time  of 
delivery  thereof,  a  receipt  for  such  depositions,  state- 
ments, plats  and  certificates.  All  such  depositions, 


124  REPORT   OF   THE    COMMISSION 

statements,  certificates  and  plats  shall  by  the  Referee  be 
kept  present  and  subject  to  inspection  by  any  person 
desiring  to  examine  the  same  for  the  purposes  of  the 
hearing  before  the  Referee,  and  shall  by  the  Referee  be 
returned  into  the  Clerk's  office  with  his  report. 

SEC.  31.  In  every  such  proceeding  the  copy  of  the 
certificate  of  the  measurement  and  rating  of  any  ditch, 
conduit,  reservoir  or  other  works  made  in  pursuance 
hereof,  and  approved  and  certified  by  the  State  Engineer, 
shall  be  deemed  prima  facie  evidence  of  the  capacity  of 
such  works  at  the  time  of  such  rating,  and  that  the 
capacity  named  therein  was  and  is  equal  to  the  maxi- 
mum capacity  of  such  works  at  any  time  theretofore;  and 
nothing  in  this  act  contained  shall  be  deemed  to  entitle 
any  person  to  read  in  evidence,  use  or  refer  to  any  depo- 
sitions taken  pursuant  to  the  act  entitled:  4'An  act  to 
Regulate  the  Use  of  Water  for  Irrigation,  and  providing 
for  the  Settling  of  Priorities  of  Right  Thereto,  and  for 
Payment  of  Expenses  Thereof,  and  for  Payment  of 
all  Costs  and  Expenses  Incident  to  such  Regulation  of 
Use,"  approved  February  19,  A.D.  1879;  or  the  Act 
entitled:  "An  Act  to  Make  Further  Provisions  for 
Settling  the  Priority  of  Rights  to  the  Use  of  Water 
for  Irrigation  in  the  District  and  Supreme  Courts,  and 
for  Making  Record  of  such  Priorities  and  for  Payment 
of  Costs  and  Expenses  Incident  Thereto,"  approved 
February  23,  A.D.  1881;  or  any  act  amendatory  thereof 
(save  against  the  deponent  in  such  former  deposition  or 
the  person  in  whose  behalf  he  was  examined),  or  any 
decree  given  by  any  District  Court  under  authority  of 
or  pursuant  to  any  such  enactment. 

SEC.  32.  Every  person  present  before  such  Referee 
at  any  hearing,  who  shall  willfully  disturb  the  proceed- 
ings, and  any  person  who  shall  refuse  or  neglect  to 
obey  any  subpoena  issued  by  the  Referee  or  out  of  said 
District  Court  on  behalf  of,  or  at  the  instance  of  the 
.State's  Attorney,  or  who  shall  refuse  or  neglect  to  obey 


NCBRNING    Till-    WATERS  OF   Tin-    STATE.       I 'J.') 

any  such  subpu-na.  in  behalf  of  any  private  person  or 
corporation  when  his  lawful  fees  for  his  attendance  shall 
have  been  tendered,  shall  be  deemed  guilty  of  contempt, 
and  if  complained  of  under  oath  of  the  Referee  or  any- 
other  person  before  the  District  Court  or  the  Judge 
thereof,  may  be  attached  and  dealt  with  as  in  other  cases 
of  contempt  of  such  Court. 

SEC.  33.  Every  witness  who  shall  attend  before  any 
such  Referee  either  under  subpoena  or  by  request  of  any 
party,  shall  be  entitled  to  the  same  per  diem  and  mileage 
as  witnesses  attending  before  the  District  Court,  to  be 
paid  by  the  person  requiring  his  attendance;  in  case  any 
witness  shall  be  subpoenaed  at  the  instance  of  the  State's 
Attorney,  his  per  diem  and  mileage  shall  be  paid  by  the 
several  counties  of  such  Water  Division  interested  in 
the  question,  in  such  proportion  as  may  be  fixed  and 
appointed  by  the  order  of  the  Court. 

SEC.  34.  Upon  the  return  of  such  testimony  such 
Court  or  the  Judge  thereof  shall  by  order  of  record 
appoint  a  day  for  the  final  hearing  of  the  matter  of  such 
petition,  which  shall  be  not  less  than  thirty  days  subse- 
quent to  the  filing  of  the  report  of  the  Referee.  Any 
inhabitant  of  the  State  of  Colorado  and  every  other 
person  in  any  manner  interested  as  owner,  lessee  or 
otherwise  of  any  works  in  this  State  for  the  diversion, 
carriage  or  storing  of  water  for  irrigation,  or  as  a  con- 
sumer of  water  for  irrigation  from  any  such  works,  may 
in  person  or  by  counsel  file  exceptions  to  the  report  of 
any  such  Referee  in  whole  or  in  part,  or  may  complain 
to  the  Court  of  any  omission,  willful  neglect  or  oppres- 
sion on  the  part  of  the  Referee,  whereby  such  party  shall 
have  been  aggrieved,  either  by  refusal  of  the  Referee  to 
hear  or  reduce  to  writing  evidence  offered,  or  by  pre- 
venting reasonable  opportunity  to  produce  or  offer  such 
evidence,  or  by  receiving  improper  evidence  at  the 
instance  of  any  other  party;  and  the  State's  Attorney 
for  any  such  Water  Division  may  interpose  like  excep- 


126  REPORT  OF  THE   COMMISSION 

tions.  On  the  day  so  appointed  for  hearing,  the  Court 
which  shall  then,  if  the  same  be  not  in  one  of  the  regu- 
lar terms  thereof,  be  deemed  to  be  sitting  in  special 
term,  shall  hear  any  person  who  may  attend  for  that 
purpose,  either  in  person  or  by  counsel,  touching  the 
regularity  of  the  proceedings  of  the  Referee,  and  shall 
sustain  or  deny  all  exceptions  filed  to  such  report  of  the 
Referee  or  any  part  thereof,  and  if  it  shall  appear  that 
such  Referee  hath  proceeded  irregularly  or  in  violation 
of  the  provisions  of  this  act,  or  hath  denied  to  any  per- 
son any  right  secured  or  intended  to  be  secured  hereby 
in  the  matter  of  such  hearing,  shall  appoint  some  other 
Referee,  or  refer  the  matter  to  the  same  Referee,  to  hear 
such  testimony  as  may  be  produced  by  any  particular 
persons,  or  corporations  in  such  order  named  or  touch- 
ing any  particular  matter  in  such  order  named,  or  to 
permit  cross-examination  of  any  witness  or  witnesses  in 
such  order  mentioned,  and  fix  the  time  and  place  for  the 
attendance  of  such  Referee,  and  of  all  persons  in  interest 
before  him,  and  the  time  when  he  shall  report;  and  shall 
adjourn  the  further  hearing  of  such  matter  until  the 
time  so  appointed  for  the  report  of  such  Referee,  and 
upon  such  further  report  shall  proceed  in  like  manner  as 
in  the  first  instance  until  satisfied  that  by  the  testimony 
heard  before  such  Referee  the  truth  of  the  matter  touch- 
ing the  several  appropriations  of  water  for  irrigation  in 
such  Water  Division,  has  been  ascertained;  or  the  Court 
may,  in  its  discretion  suffer  or  direct  the  examination'of 
witnesses  in  open  Court  touching  the  appropriation  of 
water  claimed  by  any  person  and  the  time  and  extent 
thereof,  or  the  uses  to  which  the  same  hath  been  applied, 
or  any  other  matter  or  thing  relevant  to  the  adjudication 
of  the  rights  and  priority  of  right  among  the  several 
appropriators  of  water  for  irrigation  in  such  Water 
Division;  and  in  lieu  of  adjourning  the  hearing  of  such 
matter,  upon  any  second  reference  to  the  Referee,  or  the 
appointment  of  any  new  Referee,  the  Court  may,  in  its 
discretion,  proceed  with  the  hearing  touching  the  rights 


CONCI-RNIN<;    Till-    WATI-RS    OF   THE   STATE.       ll'T 

of  any  person  or  corporation  not  affected  by  such  second 
reference.  And  upon  the  conclusion  of  the  hearing, 
after  the  final  report  of  the  Referee  last  appointed  in 
such  matter,  and  the  testimony  produced  to  the  satisfac- 
tion of  the  Court,  the  Court  shall  make  and  enter  its 
decree;  setting  forth  the  date  and  amount  of  the  orig- 
inal appropriation  of  water  by  means  of  each  ditch, 
conduit,  reservoir  or  other  works,  as  originally  con- 
structed, and  the  date  and  amount  of  appropriation  of 
water  by  any  subsequent  enlargement  thereof,  and  the 
times  during  which  the  proprietors  of  said  works  are 
entitled  to  divert,  carry  or  use  the  said  waters,  and  the 
place  of  the  diversion  of  such  waters  from  the  natural 
stream  or  other  source  of  supply  wherefrom  the  same 
are  diverted;  Provided^  hoivever,  That  no  person  shall 
in  such  decree  be  adjudged  or  decreed  to  have  appro- 
priated or  be  entitled  to  divert,  carry,  use  or  enjoy  any 
water,  which  by  the  testimony  heard  before  the  Referee 
or  the  Court,  as  hereinbefo  e  specified,  shall  appear  to 
have  been  abandoned,  or  which  shall  not  by  such  testi- 
inoney  appear  to  have  been  actually  appropriated  and 
applied  to  beneficial  uses  by  such  person  or  by  others  to 
whose  right  he  hath  surc.^edel,  or  persons  using  and 
enjoying  the  waters  diver  ed,  carried  or  stored  by  means 
of  such  works  undtr  authority  or  license  of  such  pro- 
prietors. In  every  such  decree  the  appropriation  by 
means  of  each  ditch  or  conduit  and  the  amount  of  water 
to  which  the  proprietor  thereof  are  thereby  entitled, 
shall  be  designated  in  cubic  feet  per  second  of  time,  and 
the  appropriation  by  means  of  every  reservoir,  according 
to  the  cubic  contents  theieof,  to  the  extent  to  which  the 
proprietors  thereof  are  entitled  to  cause  the  same  to  be 
filled;  and  as  to  every  such  rtservoir  every  such  deciee 
shall  specify  the  number  of  times  in  each  year  and  the 
particular  times  of  the  year,  and  the  months,  so  far  as 
practicable,  when  the  proprietors  of  such  reservoir  aie 
entitled  to  fill  the  same.  In  every  such  decree  the  said 
several  appiopriations  of  water  throughout  such  Water 


128  REPORT   OF  THE   COMMISSION 

Division  shall  be  arranged  and  numbered  in  consecutive 
order  according  to  the  dates  of  appropriation,  whether 
such  appropriations  be  made  by  the  original  construc- 
tion of  the  ditch,  conduit  or  other  works  or  by  subse- 
quent enlargement  thereof  and  without  reference  to  the 
particular  location  of  such  works  in  the  Division,  or 
whether  the  same  be  taken  from  the  main  stream  or  the 
tributaries  thereof. 

SEC.  35.  Whenever  in  such  proceedings  it  shall  be 
made  to  appear  that  any  person,  association  or  corpora- 
tion hath  theretofore  commenced  and  hath  in  progress 
any  ditch,  conduit  or  other  works  for  the  appropriation. 
or  diversion  of  water  for  irrigation,  but  hath  not  com- 
pleted the  same,  or  that  if  the  same  be  completed,  the 
waters  diverted  thereby  have  not  been  appropriated  to 
the  full  capacity  of  such  works,  and  that  a  reasonable 
time  hath  not  elapsed  for  the  completion  and  utilization 
of  such  works,  and  for  the  full  appropriation  of  .the 
water  diverted  thereby,  such  decree  shall  be  made  with 
a  saving  of  the  rights  of  the  proprietors  of  such  works, 
and  such  proprietors  may  at  any  time  afterwards,  upon 
first  procuring  the  survey  and  map  of  such  works,  and 
the  certificate  of  rating  or  estimate  of  capacity  herein- 
before required,  and  the  approval  thereof,  and  certified 
copies  thereof,  to  be  filed  as  hereinbefore. required,  upon 
noteless  than  thirty  days'  notice  to  the  several  proprie- 
tors of  the  ditches,  conduits  and  other  works  named  in 
such  decree  as  entitled  to  divert,  carry  or  use  water  in 
such  Water  Division  by  means  of  any  appropriation 
subsequent  to  the  day  alleged  as  the  date  of  commence- 
ment of  the  works  of  such  petitioner,  their  heirs  or 
assigns,  and  due  proof  thereof  made,  apply  to  such  Dis- 
trict Court  by  petition  to  establish  and  settle  by  supple- 
mentary decree  their  rights  in  that  behalf.  Such  notice 
may  be  made  returnable  either  in  term  time  or  vacation. 
The  Court  or  the  Judge  thereof,  at  the  time  appointed 
in  such  notice,  shall  either  hear  testimony  in  open. 


•£/ 


WATKKS  <u-   Tin-.  STATE,      l'J(.» 


Court,  or  -rvfVr  the  matter  of  the  taking  of  u-stimony  to 
a  Krfc-n-j  appointed  for  that  purpose,  with  such  partic- 
ular directions  as  to  him  may  seem  fit,  and  upon  full 
hearing  of  all  parties,  such  Court,  or  the  Judge  thereof 
in  vacation,  may  make  such  supplementary  decree 
touching  the  rights  of  such  petitioner  and  all  others  as 
right  and  justice  may  require.  Such  decree  shall  in  no 
manner  affect  or  impair  the  rights  of  any  appropriate^ 
not  served  with  a  notice  of  the  petition  as  above  re- 
quired, and  not  appearing  to  oppose  or  contest  the  same. 
All  testimony  heard  either  before  the  Court  or  the  Ref- 
eree upon  such  petition,  shall  be  reduced  to  writing  in 
the  manner  hereinbefore  provided,  and  shall,  if  heard 
before  the  Court  or  Judge,  be  at  the  time  reduced  to 
writing,  and  certified  by  the  Judge  of  the  Court,  and 
filed  in  the  original  cause  in  which  such  petition  is  pre- 
sented, and  like  proceedings  shall  and  may  thereafter  be 
had  within  the  like  limitation  of  time,  for  review  or 
re-argument  of  such  supplementary  decree  as  herein 
provided  ;  and  an  appeal  or  appeals  may  be  taken  and 
prosecuted  for  reviewing  such  decree  in  like  manner, 
and  under  the  same  regulations  as  herein  provided  for 
appeals  from  such  original  decree. 

SEC.  36.  Save  as  provided  in  the  last  preceding  sec- 
tion, no  adjudication  shall  be  made  in  any  such  decree 
for  or  in  behalf  of  the  proprietors  of  any  ditch,  conduit, 
reservoir  or  other  works,  who  shall  have  failed  to  deliver 
into  the  office  of  the  Clerk  of  the  District  Court  the 
certificate  required  by  the  thirteenth  section  of  this 
Article,  or  who  shall  have  failed  to  cause  such  works  to 
be  surveyed,  measured  and  rated,  or  the  capacity  thereof 
estimated,  as  herein  provided,  and  certificates  thereof 
to  be  approved  by  the  State  Engineer,  as  required  by 
the  twelfth  section  hereof. 

SEC.  37.  The  proprietors  of  any  such  ditch,  conduit 
or  other  works  having  failed  to  cause  such  survey  and 
map,  or  such  measurement  and  rating  or  estimate  of 

1  7 


130  REPORT   OF   THE   COMMISSION 

capacity  to  be  made,  and  to  be  approved  by  the  State 
Engineer,  or  the  statement  required  by  the  thirteenth 
section  hereof  to  be  filed  before  the  first  day  appointed 
for  hearing  of  the  testimony  by  the  Referee  in  the  Water 
District  wherein  such  works  are  situate,  or  having  failed 
by  reason  of  excusable  mistake  or  neglect  to  present  the 
proofs  of  their  right  before  the  Referee  at  the  time  and 
place  appointed  for  the  purpose,  pursuant  hereto,  may 
at  any  time  afterwards  and  before  conclusion  of  the 
hearing  of  the  testimony  by  the  Referee  in  such  Water 
District,  file  such  statement  and  cause  such  survey  and  map 
and  such  measurement  and  rating,  or  estimate  of  capacity 
to  be  made,  and  to  be  approved  by  the  State  Engineer, 
and  certified  copies 'of  such  map,  and  the  certificate  of 
rating,  or  estimate  of  capacity  to  be  filed  with  the  Clerk 
of  the  District  Court,  having  jurisdiction  in  the  matter 
by  this  act,  and  may  thereupon  apply  by  sworn  petition 
to  the  District  Court  having  jurisdiction  in  the  matter, 
or  the  Judge  thereof  in  vacation,  for  leave  to  attend  and 
make  proof  of  the  right  of  such  proprietors  in  respect 
of  the  waters  diverted,  carried  or  stored  thereby,  for 
irrigation,  and  their  priority  in  respect  to  such  waters, 
and  such  Court  or  the  Judge  thereof  may,  if  it  shall 
appear  to  his  satisfaction  that  the  omission  of  the  said 
proprietors  in  that  behalf  /was  through  excusable  mis- 
take or  neglect,  and  without  any  intention  to  secure 
unfair  advantage,  allow  such  petition  upon  such  terms 
as  shall  seem  to  be  just.  Thereupon  such  statement 
and  the  certificate  of  the  measurement  and  rating,  or 
estimate  of  capacity  certified  and  approved  by  the  State 
Engineer  shall  be  delivered  by  the  Clerk  of  the  Court 
to  the  Referee,  and  upon  not  less  than  ten  days  previous 
notice  of  the  allowance  of  such  petition  given  by  the 
petitioner  to  all  appropriators  of  water  in  the  Water 
Division,  who  have  theretofore  filed  with  the  Clerk  of 
the  District  Court  their  statements  of  claim  as  required 
by  the  thirteenth  section  of  this  Article,  and  to  the 
State's  Attorney  for  such  Water  Division,  and  due  proof 


CONCERNING  THE   WATERS  OF  THE  STATE.       1  .*!  1 

of  such  service  to  the  satisfaction  of  the  Referee,  testi- 
mony shall  be  heard  touching  the  rights  of  the  proprie- 
tors of  such  ditch,  conduit  or  other  works,  in  like 
manner  as  in  other  cases. 

SEC.  38.  If  at  any  such  hearing  it  shall  appear  to  the 
Court  that  any  person,  association  or  corporation  claim- 
ing to  be  entitled  to  divert,  convey,  store  or  use  water 
for  irrigation,  hath  willfully  refused  to  produce  any  deed, 
book,  record  or  other  document  or  writing  when  right- 
fully required  thereto  as  evidence  in  behalf  of  any  party 
to  such  hearing,  such  person  shall  not  in  such  final 
adjudication  be  allowed  the  benefit  of  any  testimony  or 
proofs  given  in  his,  her  or  their  behalf,  but  the  Court 
shall  reject  and  dismiss  all  claim  of  such  party  so  in 
default;  Provided^  hoivever,  That  such  person  or  per- 
sons may  afterwards  proceed  to  establish  his,  her  or 
their  rights  in  that  behalf  as  hereinafter  provided. 

SEC.  39.  The  District  Court  or  the  Judge  thereof  in 
vacation  shall  have  power  to  make  all  such  reasonable 
orders  and  rules  of  proceeding,  consistent  with  this  act, 
as  may  be  found  necessary  or  expedient  from  time  to 
time  for  carrying  out  the  intent  of  this  act,  as  well 
touching  the  proceedings  in  such  Court  as  touching  the 
proceedings  before  the  Referee,  for  the  puipose  of  secur- 
ing to  all  parties  full  hearing  before  the  Referee;  or  in 
case  of  denial  of  right  by  the  Referee,  for  securing  to 
the  party  aggrieved  opportunity  for  redress;  and  this 
act  shall  be  construed  liberally  in  all  Courts  and  places 
in  favor  of  securing  to  all  persons  interested,  the  just 
determination  and  protection  of  their  rights. 

SEC.  40.  The  District  Court  or  the  Judge  thereof 
in  vacation  shall  have  power,  upon  notice  and  for  good 
cause  shown,  and  upon  such  terms  as  to  him  may  seem 
just  to  all  parties,  to  order  a  re-hearing  of  such  matter 
at  any  time  within  two  years  next  following  the  entry 
of  such  decree,  and  the  Court  or  Judge  may  in  his  dis- 
cretion allow  additional  evidence  to  be  taken,  touching 


132  REPORT   OF  THE   COMMISSION 

any  matter  in  question  arising  in  the  said  proceeding; 
but  no  such  review,  re-hearing  or  further  examination 
shall  be  ordered  or  had  unless  applied  for  by  petition 
filed  in  such  District  Court  within  "one  year  after  the 
entry  of  the  decree  complained  of. 

SEC.  41.  Any  person  or  corporation  claiming  to  be 
the  owner  of  any  ditch,  conduit,  reservoir  or  other 
works  for  the  diversion,  conveyance  or  storage  of  water 
for  irrigation,  or  to  be  entitled  to  have  or  enjoy  water 
for  irrigation  therefrom,  or  any  number  of  persons  claim- 
ing to  be  the  owners  of,  or  jointly  or  severally  entitled 
to  water  for  irrigation  from  two  or  more  ditches,  con- 
duits or  other  works,  which  are  affected  in  common  by 
such  decree  or  any  portion  thereof,  by  which  he,  she  or 
they  may  feel  aggrieved,  may  have  an  appeal  therefrom 
to  the  Supreme  Court  at  any  time  within  two  years  after 
the  entry  of  such  decree,  and  several  such  appeals  may 
be  prayed  and  taken  from  several  parts  of  the  decree  by 
the  same  or  different  parties.  The  persons  named  as 
the  proprietors  of  the  ditch,  conduit,  reservoir  or  other 
works,  the  decree  in  favor  of  which  is  complained  of  by 
the  appellants,  shall  be  the  appellees.  The  parties  de- 
siring such  appeal  shall  file  in  the  District  Court  a  state- 
ment in  writing,  verified  by  affidavit,  specifying  the 
part  or  parts  of  the  decree  of  which  they  complain,  the 
name  or  names  of  the  ditches,  conduits,  reservoirs  or 
other  works,  the  proprietors  whereof  are  alleged  to  de- 
rive by  such  decree  undue  advantage  in  respect  of  prior- 
ity or  otherwise,  as  against  the  interests  of  the  appellants, 
the  ditches,  conduits,  reservoirs  or  other  works  claimed 
by  the  appellants  or  wherefrom  the  appellants  claim  to 
be  entitled  to  water  for  irrigation,  also  setting  forth  the 
names  of  the  party  or  parties  claiming  such  other  ditches, 
conduits,  reservoirs  or  other  works,  as  are  by  said  appel- 
lants claimed  or  asserted  to  so  derive  undue  advantage 
by  such  decree  and  praying  that  an  appeal  be  allowed 
from  the  said  decree,  as  against  such  other  parties  afore- 


CONCERNING  Till.    \VATI-RS   OF  THE  STATE.       1  ,V> 

named.  The  District  Court  or  the  Judge  thereof  in 
vacation  shall  make  an  order  allowing  the  appeal,  speci- 
fying the  names  of  the  appellants  and  the  names  of  the 
appellees  (which  may,  in  the  discretion  of  such  Court  or 
Judge,  include  other  parties  in  interest  than  those  named 
in  the  application  for  appeal),  and  shall  fix  the  amount 
of  the  appeal  bond,  which  bond  shall  be  executed  by 
one  or  more  of  the  appellants  as  principal  or  principals, 
and  one  or  more  sureties  to  be  approved  by  the  Judge  of 
such  Court  (or  the  Clerk  thereof,  if  the  order  shall  so 
direct),  and  shall  be  conditioned  for  the  payment  of  all 
costs  which  may  be  awarded  against  the  appellants  by 
the  Supreme  Court. 

SEC.  42.  The  order  directed  by  the  preceding  sec- 
tion shall  be  entered  of  record,  and  the  appellants  shall 
cause  a  copy  thereof  to  be  delivered  to  the  State's  Attor- 
ney for  such  Water  Division  and  to  each  of  the  appellees 
severally,  if  he,  she  or  they  may  be  found;  or  otherwise 
shall  cause  the  same  to  be  served  in  the  manner  and  at 
the  time  prescribed  by  law  for  the  service  of  summons 
out  of  the  District  Court  in  the  case  of  non-resident  or 
absent  parties,  of  parties  not  found. 

SEC.  43.  Within  three  months  after  the  allowance 
of  such  appeal  or  appeals,  the  Clerk  of  the  District 
Court  wherein  any  such  decree  hath  been  entered,  upon 
payment  of  his  lawful  fees  in  that  behalf,  shall  file  in 
the  office  of  the  Clerk  of  the  Supreme  Court  a  certified 
copy  of  the  decree  so  appealed  from,  or  such  part  thereof 
as  the  appellant  or  appellants  may  in  writing  specify  for 
the  purpose,  together  with  a  transcript  of  so  much  of 
the  evidence  heard  in  the  District  Court  as  shall  be 
designated  by  counsel  for  the  appellants.  No  exception 
need  be  reserved  by  any  person  to  such  decree  or  any 
part  thereof,  or  to  any  action  of  the  Court  or  the  Ref- 
eree, in  order  to  entitle  any  person  complaining  to  a 
review,  in  the  Supreme  Court,  of  the  matter  so  com- 
plained of.  All  testimony  and  objections  thereto  shall 


184  REPORT   OF  THE   COMMISSION 

be  deemed  and  taken  to  be  part  of  the  record.  The 
appellees  in  any  such  appeal  may  without  suggestion  of 
diminution  of  the  record,  cause  a  transcript  of  any  por- 
tion of  the  testimony  not  contained  in  the  transcript 
filed  by  the  appellants,  to  be  certified  and  filed  in  the 
Supreme  Court,  and  the  said  appeal  shall  be  proceeded 
with  in  like  manner  as  other  appeals.  The  Supreme 
Court  may  in  its  discretion  direct  other  parts  of  the 
testimony  heard  in  the  District  Court  to  be  certified  to 
it,  and  may  direct  other  parties  to  be  cited  to  appear  in 
such  appeal,  and  may  on  final  hearing  affirm  or  reverse 
such  decree  (if  appeal  be  taken  from  the  whole  thereof), 
or  any  part  thereof  appealed  from,  and  shall  award  costs 
in  its  discretion;  and  may,  where  any  part  of  the  decree 
appealed  from  shall  be  reversed,  make  such  decree  as 
ought  to  be  made  by  the  District  Court,  or  may  remand 
the  cause  with  directions  to  the  District  Court  as  to  the 
manner  and  respects  in  which  such*Jdecree  shall  be 
modified. 

SEC.  44.  In  case  appeal  be  taken  from  the  whole  of 
any  such  becree,  the  Clerk  of  the  District  Court,  shall, 
if  so  directed  by  the  Judge  of  such  District  Court,  cer- 
tify the  original  of  the  depositions  and  documentary 
evidence  read  in  the  District  Court  on  the  hearing  of 
such  matter;  and  upon  the  determination  of  such  appeal 
such  originals  shall  be  returned  by  the  Clerk  of  the 
Supreme  Court  to  the  Clerk  of  the  District  Court. 

SEC.  45.  The  appeal  from  such  decree  or  any  part 
thereof  shall  not  operate  as  a  supersedeas,  but  such 
decree  shall  notwithstanding  any  such  appeal  be  in  all 
things  carried  into  execution  and  obeyed  by  ;the  several 
Superintendents  of  Irrigation  in  each  Division  and  by 
the  Water  Commissioner  in  each  Water  District  until 
modified  by  the  District  Court  upon  rehearing  as  herein 
provided,  or  reversed  or  modified  by  the  Supreme  Court, 
or  pursuant  to  the  order  of  the  Supreme  Court. 


£ONVM  HI-    WATERS  or  Tin-   STATE,      1  .".."• 

SEC.  46.  Proof  of  the  publication  of  any  notice 
required  by  this  act  shall  be  sufficiently  made  by  certifi- 
cate of  the  publisher  of  the  newspaper  wherein  the  same 
shall  be  published,  and  proof  of  the  service  of  any 
process  or  notice  o^  the  posting  of  any  notice  hereby 
required  may  be  made  by  return  of  the  officer,  or  affi- 
davit of  any  person  serving  or  posting  the  same. 

SEC.  47.  If  the  transcript  of  record  of  the  decree 
and  testimony  be  not  filed  in  the  office  of  the  Clerk  of 
the  Supreme  Court,  together  with  the  proof  of  the 
service  of  the  order  allowing  the  appeal  upon  the  several 
appellees  therein  named  within  three  months  after  the 
making  of  such  order,  the  appeal  shall,  on  motion  of 
any  of  the  appellees  therein,  or  the  State's  Attorney  for 
such  Water  Division,  be  dismissed,  unless  the  Court 
shall,  for  good  cause  shown,  grant  further  time  for  the 
filing  of  such  transcript  or  for  making  and  filing  proof 
of  the  serving  of  such  notice. 

SEC.  48.  The  Supreme  Court  shall  have  power  to 
make  rules  concerning  such  appeals  as  may  be  necessary 
or  expedient  for  the  furtherance  of  the  purposes  of  this 
act,  as  well  in  respect  to  the  preparation  and  submission 
of  the  cause  as  for  supplying  deficiencies  in  the  record 
and  avoiding  unnecessary  costs  and  delay.  Save  as  in 
this  act  and  in  such  rules  of  the  Supreme  Court  pro- 
vide^, such  appeals  shall  be  governed  in  all  things  by 
the  lawslregulating  appeals  in  other. cases. 

SEC.  49.  Nothing  in  this  act  or  in  the  decree  ren- 
dered under  the  provisions  hereof,  shall  prevent  any 
person,  association  or  corporation  from  instituting  in 
the  District JlCourt  having  jurisdiction  by  this  act  for 
the  ascertainment  and  settlement  of  the  rights  and 
priorities  of  the  several  appropriators  of  water  in  any 
Water  Division,  any  suit  or  action  hitherto  allowed  by 
the  law  for  establishing  any  claim  of  right  or  priority 
to  divert,  carry,  store  or  use  water  for  irrigation,  at  any 
time  within  four  years  after  the  enty  of  the  final  decree 


186  REPORT  OF  THE   COMMISSION 

provided  for  in  this  act  in  the  Water  Division  wherein 
such. right  may  be  claimed.  No  preliminary  injunction 
shall  issue  in  any  case  restraining  the  use  or  distribution 
of  water  in  any  Water  Division  wherein  such  final 
decree  shall  have  been  rendered,  in  conformity  with  the 
provisions  of  such  decree,  or  which  shall  affect  the  dis- 
tribution or  use  of  water  in  any  manner  adversely  to 
the  rights  of  the  parties  thereto  as  thereby  determined 
and  established. 

SEC.  50.  After  the  lapse  of  four  years  from  the 
entry  of  such  final  decree  in  any  Water  Division,  all 
persons  who  have  not  theretofore  instituted  an  action  or 
actions  as  provided  in  the  last  section,  shall  be  forever 
barred  from  setting  up  or  alleging  any  claim  to  the  use 
of  water  in  such  Water  Division  contrary  to  the  effect 
of  such  decree,  save  as  hereinafter  provided,  in  the  case 
of  the  abandonment  by  any  appropriator  of  the  waters 
whereunto  by  such  decree  he  may  be  entitled. 

S*EC.  51.  As  soon  as  may  be  after  the  entry  of  such 
final  decree,  as  hereinabove  provided  in  any  Water 
Division,  the  Clerk  of  the  District  Court  wherein  such 
decree  hath  been  entered  shall  prepare  and  certify  a 
copy  thereof  and  transmit  the  same  to  the  State  Engi- 
neer for  his  guidance,  and  shall  in  like  manner,  on  the 
payment  of  his  proper  fees  in  that  behalf,  certify  and 
deliver  a  copy  or  copies  thereof  or  any  part  thereof  to 
any  other  person  whomsoever  on  request;  and  whenever 
any  supplementary  decree  shall  be  made  or  entered  in 
any  such  District  Court  for  modifying  or  amending  such 
original  decree,  or  any  decree  shall  be  entered  in  the 
Supreme  Court  reversing  or  modifying  any  such  decree, 
or  directing  the  modification  thereof  by  the  District 
Court,  the  Clerk  of  the  Supreme  Court  shall  in  like 
manner  certify  a  copy  thereof  and  transmit  the  same  to 
State  Engineer. 

SEC.  52.  The  State's  Attorney  appointed  in  pur- 
suance hereof  shall  be  paid  the  sum  of  ten  dollars  per 


PHE  \v.\  ]•:.     l:',7 

da\  for  each  day  during  which  he  .shall  he  necessarily 
employed  in  the  discharge  of  his  duties  herein  pre- 
scribed. The  Referee  shall  be  paid  the  sum  of  ten 
dollars  for  each  day  during  which  he  shall  be  so  em- 
ployed, which  shall  be  in  full  of  all  service  rendered  by 
such  Referee,  his  clerks  and  assistants.  The  State's 
Attorney  and  Referee  shall  severally  be  allowed  their 
reasonable  and  necessary  expenses  and  mileage  at  the 
rate  of  ten  cents  for  each  mile  actually  and  necessarily 
traveled  by  them,  going  and  coining  in  the  discharge  of 
their  respective  duties. 

They  shall  each  keep  a  just  and  true  account  of  the 
time  employed  in  the  discharge  of  his  duties  and  his 
expenses  and  mileage,  setting  down  therein  in  what 
particular  examination  or  other  matter  he  was  employed 
during  each  day  charged  for,  and  the  particular  items 
of  all  expenses  charged,  and  the  particular  journeys  in 
respect  of  which  mileage  is  charged,  and  shall  return 
the  same  verified  by  his  oath  into  the  District  Court,  and 
the  same  per  diem  allowance,  expenses  and  mileage, 
and  the  fees  of  the  Clerk  and  all  Sheriffs  and  Water 
Commissioners  for  the  serving  of  notices  or  process,  and 
the  fees  of  all  witnesses  attending  before  the  Referee,  on 
behalf  of  the  State,  and  the  costs  of  the  publication  of 
the  notices  hereby  required,  shall  by  the  Court  or  the 
Judge  thereof  from  time  to  time,  as  soon  as  may  be  after 
the  rendition  of  the  service,  be  ascertained  and  deter- 
mined and  apportioned  among  the  several  counties 
which  in  whole  or  in  part  are  contained  within  the 
Water  Division,  and  such  Court  shall  enter  an  order 
allowing  to  the  persons  entitled,  respectively,  as  a  debt 
against  the  several  counties,  the  amount  so  apportioned 
against  them  respectively,  and  the  Board  of  Commis- 
sioners of  each  of  such  counties  upon  production  of  the 
certified  copy  of  so  much  of  said  order  as  relates  to  the 
apportionment  against  said  county,  shall  allow  the 
amount  and  cause  a  warrant  to  be  drawn  therefor  upon 
is 


138  REPORT  OF  THE   COMMISSION 

the  County  Treasurer  in  favor  of  the  person  or  persons 
named  in  such  order  as  entitled  thereto.  The  Court  or 
the  Judge  thereof  in  vacation  may  at  any  time  pending 
the  said  proceedings  or  the  hearing  of  testimony  before 
the  Referee,  allow  either  to  the  State's  Attorney  or  to 
the  Referee  or  to  any  other  officer  or  witness,  for  his 
service,  mileage,  expenses  or  attendance  either  before 
the  Referee  or  otherwise,  the  amount  then  due  him  in 
that  behalf,  and  may  direct  any  such  amount  to  be  paid 
wholly  by  any  one  of  the  several  counties,  and  other 
amounts  payable  to  any  person  on  like  account  to  be  paid 
by  any  other  county  of  such  Water  Division,  so  that 
howsoever  upon  final  adjustment  of  the  costs  of  such 
proceeding,  the  same  shall  be  justly  apportioned  among 
the  several  counties  of  such  Water  Division. 

SEC.  53.  If  any  person  shall  procure  or  solicit  the 
State  Engineer  or  any  Assistant  State  Engineer,  or  any 
Deputy  Irrigation  Engineer  to  make  or  certify  any  false 
measurement,  rating  or  estimate  of  the  capacity  of  any 
ditch,  conduit,  reservoir  or  other  works,  or  shall  solicit 
or  procure  the  approval  by  the  State  Engineer  of  any 
false  measurement,  rating  or  estimate,  or  if  the  State 
Engineer  or  any  Assistant  State  Engineer,  or  any  Dep- 
uty Irrigation  Engineer  shall  knowingly  and  willfully 
make  or  approve  any  such  false  rating,  measurement  or 
estimate,  or  any  certificate  thereof,  or  if  any  State's 
Attorney  or  Referee,  appointed  in  pursuance  hereof, 
shall  accept  such  appointment,  being  then  in  any  way 
interested  in  any  ditch,  conduit,  reservoir  or  other  works 
for  the  diversion,  conveyance  or  storage  of  water  for 
irrigation  in  such  Water  Division,  as  owner  thereof  in 
whole  or  in  part,  or  as  the  owner  of  stock  in  any  corpo- 
ration, the  proprietor  of  any  such  works,  or  as  the  con- 
sumer of  water  for  irrigation  from  any  such  works,  or 
being  then  counsel  or  attorney  for  any  such  person  or 
corporation,  the  proprietor  of  such  works,  touching  his 
or  its  claim  in  that  behalf,  shall  accept  such  appoint- 


STCERNING  THM  \VATKKS  <>!•   TIII-.  STATK.      1 :'.'.» 

incut  to  cither  of  said  offices,  or  shall  afterwards,  directly 
or  indirectly  during  his  continuance  in  office,  purchase 
or  bargain  or  negotiate  for  any  interest  in  such  w 
or  in  the  stock  of  any  corporation,  proprietor  thereof,  or 
any  right  to  the  use  of  water  therefrom,  or  shall  know- 
ingly accept  the  retainer  or  employment  of  any  person 
or  corporation,  proprietor  of  such  works,  or  any  con- 
sumer of  water  therefrom  for  irrigation,  in  respect  of  the 
claim  of  the  proprietors  of  any  such  works,  or  the  claim 
of  such  person  in  that  behalf,  or  other  matter  whatso- 
ever, or  shall  willfully  refuse  to  perform  any  duty  hereby- 
required  of  him,  or  shall  destroy  or  suppress  any  depo- 
sition taken  before  any  such  Referee,  or  any  plat,  certi- 
ficate or  statement  delivered  to  him  in  pursuance  hereof, 
or  any  document  or  copy  thereof  produced  or  delivered 
to  him  as  evidence  in  behalf  of  any  person,  association 
or  corporation,  or  if  any  such  Referee  shall  knowingly 
and  willfully  make  any  false  report  of  any  testimony, 
or  if  any  such  State's  Attorney  shall  knowingly  connive 
at  any  false  claim  made  by  any  person  before  such  Ref- 
eree, every  person  so  offending  shall  be  deemed  guilty 
of  a  misdemeanor,  and  shall,  on  conviction  thereof,  be 
punished  by  fine  not  exceeding  two  thousand  dollars,  or 
by  imprisonment  in  the  Penitentiary  not  exceeding 
three  years,  or  by  both  such  fine  and  imprisonment  in 
the  discretion  of  the  Court  wherein  conviction  shall 
be  had. 

SEC.  54.  Any  person,  association  or  corporation 
claiming  to  be  entitled  to  the  enjoyment  and  use  of 
water  for  irrigation  in  any  Water  Division  by  appropria- 
tion subsequent  to  the  last  in  priority  of  the  appropria- 
tors  named  in  any  such  [decree  (entered  in  pursuance  of 
this  Article),  upon  procuring  the  ditch,  conduit  or  other 
works  by  which  such  waters  are  appropriated,  to  be  sur- 
veyed, and  the  notes  and  map  of  such  survey  as  required 
by  this  Article  to  be  approved  by  the  State  Engineer, 
and  upon  also  procuring  such  works  to  be  measured  and 


140  REPORT   OF   THE   COMMISSION 

rated,  or  the  capacity  thereof  estimated,  in  like  manner 
as  hereby  required,  and  upon  procuring  to  be  filed  in  the 
office  of  the  Clerk  of  the  District  Court  to  which  in  pur- 
suance of  this  act  jurisdiction  is  committed  to  adjudge 
and  settle  the  rights  and  priorities  of  the  several  appro- 
priators  of  the  Water  Division,  a  copy  of  the  field  notes 
and  map  of  the  survey  of  such  works  and  of  the  certifi- 
cate of  such  measurement  and  rating  or  estimate  of 
capacity  by  the  State  Engineer,  as  required  by  this 
Article,  may  apply  by  petition  to  such  District  Court,  or 
the  Judge  thereof  in  vacation,  to  ascertain  and  settle  by 
decree  his  right  and  the  right  of  all  others  in  said  Water 
Division  similarly  situated.  Together  with  such  peti- 
tion the  petitioner  therein  shall  file  with  the  Clerk  of 
the  Court  a  certificate  from  the  State  Engineer  setting 
forth  the  names  of  all  persons,  associations  and  corpora- 
tions who,  since  the  date  of  priority  awarded  by  the 
former  decree,  entered  in  such  Water  Division,  in  pur- 
suance of  the  thirty-fourth  section  of  this  Article,  to  the 
appropriator  last  in  priority  in  such  decree  named,  have 
filed  in  the  office  of  the  State  Engineer  the  map  and 
statement  required  by  the  fourth  Article.  Upon  the 
filing  of  such  petition  the  Judge  of  the  Court  shall 
appoint  a  day  when  the  same  shall  be  heard,  and  the 
Clerk  of  the  Court  shall  thereupon  issue  and  transmit  to 
the  Water  Commissioner  of  each  Water  District  in  such 
division,  a  citation  with  copies  thereof  which  shall  be 
served  upon  each  appropriator  and  claimant  of  water 
named  in  the  list  of  appropriators  aforesaid,  at  least  five 
days  prior  to  the  date  appointed  for  such  hearing,  and 
thereupon  the  like  proceedings  shall  be  had  touching  the 
claim  of  the  petitioner  and  all  other  appropriators  cited 
as  aforesaid  as  hereinabove  prescribed  by  this  Article, 
touching  the  original  ascertainment  of  priorities;  Pro- 
vided, however,  That  the  final  decree  upon  such  petition 
shall  in  no  manner  impeach  or  impair  the  right  of  any 
appropriator  named  in  such  former  decree  or  any  decree 
entered  in  the  said  Water  Division  to  have,  use  and  enjoy 


CONVF.RNI.M;  Tin-:   \v.\  THE  STATE,      1-41 

the  waters  to  the  use  whereof  by  the  terms  of  such  <K 
such  appropriate!  shall  appear  to  be  entitled,  unless  it 
shall  be  made  to  appear  and  shall  be  adjudged  that  the 
right  to  the  use  of  such  waters  as  specified  and  awarded 
in  the  former  decree  was  obtained  by  corruption  or  fraud 
or  hath  been  lost  by  abandonment  or  otherwise,  nor 
unless  such  appropriator,  his  heirs,  assigns  or  those 
entitled  under  him  to  the  use  of  such  waters,  be  cited 
and  be  made  party  to  such  petition  and  such  corruption 
or  fraud  or  the  abandonment  or  loss  of  the  right  to  the 
use  of  such  waters  be  in  such  petition  expressly  averred. 

SEC.  55.  The  publisher  of  any  newspaper  wherein 
shall  be  inserted  any  notice  required  to  be  publshed  by 
this  act,  shall  be  entitled  to  the  same  fee  as  is  or  may 
hereafter  be  allowed  by  law  for  the  publication  of  sum- 
mons in  counties  of  the  class  in  which  said  newspaper 
may  be  published. 

SEC.  56.  Wherever  in  any  Water  District  there  shall 
be  no  newspaper  published  or  the  proprietors  of  no 
newspaper,  in  such  Water  District  will  publish  any 
citation  or  notice  required  by  this  act,  for  the  fee  herein 
provided,  payable  as  herein  provided,  the  posting 
thereof  hereby  provided  shall  stand  in  lieu  of  such 
publication. 

SEC.  57.  The  terms  "appropriator,"  "appropri- 
ators,"  or  "appropriates  of  water,"  as  used  in  this 
Article  shall  be  construed  to  include  the  proprietors  of 
works  for  the  diversion,  conveyance  or  storage  of  water 
for  irrigation,  though  such  water  be  used  and  enjoyed 
solely  by  others. 

SEC.  58.  Every  decree  entered  in  pursuance  of  this 
Article,  establishing  the  right  of  any  person  or  corpora- 
tion to  divert,  convey  or  store  water  for  irrigation,  shall 
expressly  provide  that  such  person  or  corporation  shall 
divert,  convey  or  store  such  water  only  to  the  extent  of 
the  reasonable  needs  of  the  persons  or  corporation  using 
the  same,  his,  her  or  its  heirs,  successors  or  assigns. 


14*2  REPORT   OF  THE   COMMISSION 

ARTICLE   IX. 

OF  CARRIERS   OF  WATER. 

SECTION  i.  It  shall  not  be  lawful  for  any  person, 
association  or  corporation  owning  or  controlling,  or 
claiming  to  own  or  control,  any  ditch,  canal  or  reservoir 
carrying  or  storing  or  designed  for  the  carrying  or  stor- 
ing, of  water  taken  from  any  natural  stream,  or  other 
source  of  supply  within  this  State,  to  be  carried  or  stored 
and  delivered  for  compensation,  for  irrigation,  mining, 
milling,  sanitary  or  domestic  purposes,  to  persons  not 
interested  in  such  ownership  or  control,  to  demand,  bar- 
gain for,  accept  or  receive  from  any  person,  who  may 
apply  for  water  for  any  of  the  aforesaid  purposes,  any 
money  or  other  valuable  thing  whatsoever,  or  any 
promise  or  agreement  therefor,  directly  or  indirectly,  as 
royalty,  bonus  or  premium,  prerequisite  or  condition 
precedent  to  the  right  or  privilege  of  applying  or  bar- 
gaining for,  or  procuring  such  water;  but  such  water 
shall  be  carried  or  stored  and  delivered  according  to  the 
right  of  the  person  entitled  to  the  enjoyment  thereof, 
upon  the  payment  or  tender  of  the  charges  fixed  by  the 
County  Commissioners  of  the  proper  county,  as  is  or 
may  be  provided  by  law.  Any  and  all  moneys  and 
every  valuable  thing  or  consideration  of  whatsoever 
kind  which  shall  be  so  as  aforesaid  demanded,  charged, 
bargained  for,  accepted,  received  or  retained,  contrary  to' 
the  provisions  of  this  section,  shall  be  deemed  and  held 
an  additional  and  corrupt  rate,  charge  or  consideration 
for  the  water  intended  to  be  furnished  and  delivered 
therefor,  or  because  thereof,  and  wholly  extortionate  and 
illegal,  and  when  paid  or  delivered  or  surrendered  may 
be  recovered  back  by  the  party  or  parties  paying,  deliv- 
ering or  surrendering  the  same,  from  the  party  to  whom 
or  for  whose  use  the  same  shall  have  been  paid,  delivered 
or  surrendered,  together  with  all  costs  of  suit,  including 
reasonable  fees  of  attorneys  of  plaintiff,  by  proper 
action  in  any  Court  having  jurisdiction. 


mi:   WATERS  oi-   THE  STATi-:       I  -\:\ 


Si;c.  2.  Every  person,  association  or  corporation 
or  controlling  or  claiming  to  own  or  control  any 
ditch,  canal  or  reservoir,  as  is  mentioned  in  the  first  sec- 
tion of  this  Article,  who  shall,  after  demand  in  writing 
made  upon  him  for  the  supply  or  delivery  of  water  for 
'irrigation,  mining,  milling  or  domestic  purposes,  to  be 
delivered  from  the  ditch,  canal  or  reservoir  owned, 
possessed  or  controlled  by  him,  and  after  tender  of  the 
lawful  rates  of  compensation  therefor  in  lawful  money, 
demand,  require,  bargain  for,  accept,  receive  or  retain 
from  the  party  making  such  application,  any  money  or 
other  thing  of  value,  or  any  promise  or  contract  or  any 
valuable  consideration  whatever,  as  such  royalty,  bonus, 
premium,  prerequisite  or  condition  precedent,  as  is  by  the 
provisions  of  the  first  section  of  this  Article  prohibited, 
shall  be  deemed  guilty  of  a  misdemeanor,  and  on  convic- 
tion thereof  shall  be  punished  by  a  fine  of  not  less  than  one 
hundred  dollars,  nor  more  than  five  thousand  dollars,  or 
imprisonment  for  a  term  of  not  less  than  three  months 
nor  more  than  one  year,  or  both  such  fine  and  impris- 
onment, in  the  discretion  of  the  Court. 

SEC.  3.  Every  person,  association  or  corporation 
owning  or  controlling,  or  claiming  to  own  or  control  any 
ditch,  canal  or  reservoir  such  as  is  mentioned  in  the  first 
section  of  this  Article,  who  shall,  after  demand  in  writ- 
ing made  upon  him  for  the  carriage  or  delivery  of  water 
for  irrigation,  mining,  milling,  sanitary  or  domestic 
purposes,  to  be  carried  in  or  delivered  from  the  ditch, 
canal  or  reservoir  owned,  possessed  or  controlled  by  him, 
and  after  tender  of  the  lawful  rate  of  compensation 
therefor  in  lawful  money,  refuse  to  furnish  and  deliver 
from  such  ditch,  canal  or  reservoir,  any  water  so  applied 
for,  or  carry  therein  any  water  the  carriage  whereof  is 
so  applied  for,  which  water  can  or  may  be,  by  use  of 
reasonable  diligence  in  that  behalf  and  within  the  carry- 
ing or  storage  capacity  of  such  ditch,  canal  'or  reservoir 
lawfully  carried,  furnished  and  delivered,  without 


144  REPORT   OF  THE   COMMISSION 

infringement  of  prior  rights,  shall  be  deemed  guilty  of 
a  misdemeanor,  and  upon  conviction  thereof,  shall  be 
punished  by  a  fine  of  not  less  than  one  hundred  dollars, 
nor  more  than  five  thousand  dollars,  or  imprisonment  for 
a  term  of  not  less  than  three  months  nor  more  than  one 
year,  or  both  such  fine  and  imprisonment  in  the  discre- 
tion of  the  Court;  Provided,  however,  That  when  any 
person,  association  or  corporation  hath  heretofore  con- 
structed or  shall  hereafter  construct  any  ditch,  canal, 
conduit,  reservoir  or  other  works  for  the  carrying  or 
storage  of  waters  in  part  for  the  irrigation  of  land 
belonging  to  such  person  or  corporation,  or  for  the 
enjoyment  of  such  waters  in  part  by  such  person  or 
corporation  for  any  other  purpose  whatsoever,  and  in 
part  for  the  use  of  other  persons  or  corporations,  nothing 
herein  contained  shall  be  so  construed  as  to  require  such 
person  or  corporation  to  yield  up  or  deliver  to  others,  or 
to  suffer  to  be  used  by  others  the  waters  by  him  or  it 
theretofore  devoted  to  beneficial  uses;  and  every  such 
person  or  corporation  shall  be  entitled  to  a  reasonable 
time  after  the  completion  of  his  works,  for  enclosing, 
breaking  up  and  otherwise  preparing  any  lands  by  him 
or  it  proposed  to  be  irrigated,  or  for  erecting  and  equip- 
ping any  works  intended  to  be  operated  by  means  of 
such  waters,  or  for  preparing  to  use  and  enjoy  in  any 
other  way  whatsoever  the  waters  so  diverted  for  his  or 
its  purpose. 

SEC.  4.  If  any  person,  association  or  corporation  in 
defiance,  or  evasion  of  the  provisions  of  this  act,  shall 
after  the  tender  of  the  compensation  hereinbefore  pro- 
vided for,  refuse  to  deliver  water  as  is  mentioned  in  the 
third  section  of  this  article,  to  any  person  or  corporation 
lawfully  entitled  to  apply  therefor,  or  to  perform  any 
duty  required  of  him  in  this  act,  it  shall  be  the  duty  of 
the  Attorney  General,  upon  request  of  the  County  Com- 
missioners of  the  proper  county,  or  upon  his  otherwise 
receiving  due  notice  thereof,  to  institute  and  prosecute 


6/tW-  & 


CONCKKMM,  THE  \V\TKRS  or  Tin-   STA1 

to  judgment    and    final    determination    proceedings    in 

t/no  icarranto  for  tlu-  forfeiture  of  the  corporate  rights, 
privileges  and  franchises  of  any  such  corporation  so 
offending;  or  by  mandamus  or  other  proper  proceedings 
to  compel  it  to  do  its  duty  in  that  behalf. 

SEC.  5.  Every  officer  of  a  corporation  or  member 
of  an  association  or  co-ownership,  and  any  superintend- 
ent or  agent  violating  any  of  the  foregoing  provisions 
of  this  article,  shall  be  liable  to  restore  the  unlawful 
consideration  extorted,  and  be  punishable  under  the 
penal  provisions  of  this  article,  the  same  as  if  the  thing 
done  in  disobedience  to  its  provisions  were  done  for  his 
sole  benefit  and  advantage. 

SEC.  6.  Every  person,  association  or  corporation 
owning  or  controlling  any  ditch  or  conduit  for  carrying 
water  for  irrigation  shall,  from  the  fifteenth  day  of  April 
to  the  fifteenth  day  of  November  in  each  year,  so  far  as 
may  be  reasonably  practicable,  keep  therein  a  flow  of 
water  sufficient  to  supply  and  discharge  the  amount  to 
which  all  or  those  lawfully  entitled  to  the  use  of  water 
therefrom,  may  be  entitled. 

SEC.  7.  The  proprietors  of  every  reservoir  for  the 
collection  or  storage  of  water  for  irrigation,  which 
waters  in  whole  or  in  part,  are  sold  or  leased  to  other 
persons,  shall  use  reasonable  diligence  to  keep  the  same 
at  all  times  in  good  order  and  repair  and  ready  to  re- 
ceive, hold  and  discharge  the  waters,  which  by  means 
thereof  the  proprietors  of  such  reservoir  are  entitled  to 
collect  or  store. 

SEC.  8.  The  proprietor  of  all  such  works  shall  con- 
struct and  maintain  necessary  outlets  and  gates  in  such 
ditch,  or  conduit,  or  in  the  ditch  or  conduit  conveying 
water  from  any  such  reservoir,  for  the  convenient  deliv- 
ery of  water  to  the  persons  entitled  to  the  use  of  water 
from  such  works;  Provided,  however,  That  where  two 
or  more  of  the  persons  entitled  to  the  use  of  water  from 


146  REPORT    OF  THE   COMMISSION 

such  works  can  be  conveniently  supplied  from  one  out- 
let, a  second  or  other  outlets  shall  not  be  required;  and 
a  multiplicity  of  outlets  in  any  ditch  or  conduit  shall  at 
all  times  be  avoided  so  far  as  practicable.  The  location 
of  such  outlets  shall  be  under  the  control  of  the  man- 
ager or  superintendent  of  such  ditch,  conduit  or  res- 
ervoir, and  the  same  shall  be  located  at  the  places  most 
convenient  and  practicable,  haying  reference  to  the  pro- 
tection and  safety  of  the  works  and  the  convenient  dis- 
tribution of  water  therefrom  among  those  entitled  to  the 
use  thereof;  And  provided,  further,  That  nothing 
herein  contained  shall  be  construed  to  prohibit  the  pro- 
prietors of  any  such  works  from  agreeing  with  those 
entitled  to  the  use  of  such  waters,  to  construct  or  main- 
tain such  outlets  and  the  gates  thereof.  Every  such 
gate  shall  be  constructed  with  embankments  of  height 
and  strength  sufficient  to  control  and  exclude  the  water 
at  all  stages  and  shall  be  so  constructed  and  arranged 
that  the  gate  may  be  set  and  locked  at  any  place,  so  as 
to  exclude  any  part  of  such  waters.  The  proprietors  of 
any  such  ditch,  conduit  or  reservoir  failing,  refusing  or 
neglecting  to  construct  such  gate  in  any  outlet  or  place 
of  discharge  of  the  waters  furnished  from  such  works, 
conformably  hereto,  when  thereto  required  by  any  con- 
sumer of  water  '  from  such  works,  and  every  person 
using  such  water  who  by  such  agreement  with  the  pro- 
prietors of  such  works  is  obligated  to  construct  such 
gate,  so  failing,  neglecting  or  refusing,  shall  be  fined  in 
not  less  than  five  dollars  for  each  day  of  his  default  in 
that  behalf. 

SEC.  9.  It  shall  be  the  duty  of  the  superintendent 
of  every  such  ditch,  conduit  or  reservoir  to  measure  the 
water  therefrom  through  the  outlets  to  those  entitled 
thereto,  and  in  time  of  scarcity  to  apportion  the  waters 
flowing  in  such  ditch  or  conduit,  or  collected  in  such 
reservoir  among  those  entitled  thereto,  ratably,  and 
according  to  the  amounts  to  which  they  are  severally 


\CKRMNi.    THE   WATERS  OF  THE  STATE.       147 

entitled.  Where  any  such  ditch,  conduit  or  reservoir 
hath,  subsequent  to  the  original  construction  been 
enlarged,  the  water  diverted,  collected,  conveyed  or 
stored  by  means  of  such  enlargement,  shall  be  distrib- 
uted and  apportioned  in  like  manner.  The  several  con- 
sumers of  water  under  any  lateral,  may  at  any  time,  by 
vote  of  a  majority  thereof,  appoint  a  superintendent  to 
such  lateral,  who  shall  be  charged  with  the  distribution 
of  the  water  allotted  thereto  by  the  superintendent  of 
the  ditch,  among  those  entitled  to  the  use  of  water 
from  such  lateral.  A  meeting  may  at  any  time  be 
called  by  not  less  than  two  of  the  consumers  under  such 
lateral,  by  notice  in  writing  specifying  the  time,  place 
and  purpose  thereof,  for  electing  such  superintendent  or 
removing  him  and  appointing  another.  Such  superin- 
tendent shall  hold  his  office  during  the  pleasure  of  the 
consumers  of  water  from  such  lateral,  or  a  majority  of 
them,  and  shall  receive  only  such  salary  or  compensa- 
tion as  they  may  appoint. 

SEC.  10.  Any  superintendent  having  charge  of  any 
such  ditch,  canal,  conduit  or  reservoir,  who  shall  will- 
fully neglect  or  refuse  to  deliver  water  as  in  this  act 
provided,  to  any  person  entitled  thereto,  shall  on  convic- 
tion thereof  be  fined  not  less  than  ten  dollars,  and  not 
more  than  one  hundred  dollars,  or  be  imprisoned  in  the 
county  jail  for  not  less  than  one  month,  or  punished  by 
both  such  fine  and  imprisonment;  and  the  proprietors 
of  such  works  shall  moreover  be  liable  in  damages  to 
the  person  or  persons  deprived  of  the  use  of  water  to 
which  he  or  they  were  entitled,  as  in  this  act  provided. 

SEC.  ii.  Any  person  having  by  lease,  purchase  or 
agreement,  written  or  oral,  procured  from  any  carrier 
water  for  the  irrigation  of  lands,  or  for  other  use  what- 
soever, and  having  actually  applied  such  water  to  bene- 
ficial uses,  shall  thereafter  in  every  year,  upon  payment 
of  the  reasonable  rate  therefor  prescribed  by  the  County 
Commissioners  (or  if  no  such  rate  hath  been  prescribed, 


148  REPORT   OF  THE  COMMISSION 

then  at  a  reasonable  rate  and  price  not  exceeding  that 
at  which  such  carrier  hath  been  wont  to  supply  water  to 
others  during  the  year  then  last  preceding),  be  entitled 
to  continue  in  the  enjoyment  of  water  from  the  works 
of  such  carrier  to  the  same  amount;  Provided,  however, 
That  nothing  herein  contained  shall  be  deemed  to 
enlarge  the  effect  of  any  grant,  lease  or  other  agreement 
by  any  carrier  for  the  use  by  one  person  during  any 
limited  period,  of  water  to  the  use  or  enjoyment  of 
which  by  lawful  grant,  lease  or  agreement  of  such 
carrier  theretofore  made,  any  other  person  is  entitled, 
such  person  so  entitled  to  the  use  of  such  waters  not 
then  having  need  or  occasion  therefor,  nor  to  entitle  any 
person  to  resume  the  use  or  enjoyment  of  water  after 
having  once  abandoned  the  same,  nbr  after  having  failed 
or  refused  to  pay  the  reasonable  rate  lawfully  demanded 
therefor  by  the  carrier  in  any  year,  nor  to  require  the 
carrier  to  supply  water  to  persons  persistently  refusing 
to  comply  with  the  reasonable  regulations  prescribed  by 
such  carrier  for  the  government  of  the  distribution  of 
water  from  its  works. 

SEC.  12.  The  several  persons  and  corporations  first 
lawfully  using  and  enjoying  water  customarily  diverted, 
carried  or  stored  by  any  ditch,  conduit  or  other  works 
to  the  amount  reasonably  sufficient  and  efficient  for  the 
uses  to  which  the  same  shall  be  so  applied,  shall  be 
deemed  and  taken  in  the  distribution  of  such  waters  to 
be  of  equal  right  and  of  the  same  priority;  and  as 
against  such  persons  and  corporations,  all  grants,  leases, 
covenants  and  agreements  whatsoever  for  the  delivery 
or  use  of  water  out  of  such  works,  by  other  persons, 
shall  be  deemed  and  taken  to  be  utterly  void,  and  as 
between  the  grantees,  lessees,  convenantees,  and  con- 
tracting parties  therein  respectively  shall  have  effect  as 
of  the  date  when  such  persons  severally  began  to  use 
and  enjoy  the  waters  claimed  by  virtue  thereof. 


CONCI-KMNC.    Till-    WATERS    ()F   THE   STATE. 

Si  c.  13.  Any  person  entitled  to  use  or  enjoy  other- 
wise than  for  domestic  uses  any  part  or  share  of  the 
waters  diverted,  conveyed  or  stored  by  any  ditch,  con- 
duit or  other  works,  may  exhibit  in  the  District  Court  of 
the  county  whereuuto  by  this  act  is  committed  jurisdic- 
tion to  settle  and  determine  the  rights  and  priorities  of 
the  several  appropriators  of  water  in  the  Water  Division, 
his  complaint  praying  the  Court  to  establish  the  rights 
of  the  several  persons  entitled,  or  claiming  to  be  entitled, 
to  use  and  enjoy  the  waters  diverted,  carried  or  stored 
by  means  of  any  such  works. 

SEC.  14.  Every  such  complaint  shall  set  forth:  The 
name  of  such  works;  the  county  or  counties  wherein  the 
same  are  situate;  the  several  counties  wherein  waters 
diverted,  carried  or  stored  thereby,  have  been  theretofore 
at  any  time  used,  so  far  as  known;  the  amount  of  water 
actually  diverted,  collected  or  stored  by  means  of  such 
works  and  theretofore  customarily  applied  to  beneficial 
uses,  and  as  nearly  as  may  be  the  amount  to  which  the 
same  have  been  reasonably  sufficient  therefor;  the  right 
of  the  plaintiff  in  that  behalf  and  the  amount  of  water 
to  the  use  whereof,  out  of  such  works,  he  claims  to  be 
entitled;  the  foundation  of  his  claim  thereto,  whether 
by  deed,  lease  or  other  agreement  or  license  of  the 
proprietors;  the  date  of  such  agreement  and  the  time 
when  such  plaintiff  or  his  predecessors  in  the  use  and 
enjoyment  of  such  waters  first  began  to  make  application 
thereof  to  beneficial  uses,  and  shall  name  as  defendants 
thereto  the  proprietors  of  such  works  and  all  mortgagees 
or  encumbrancers  thereof,  and  the  persons  claiming  to 
be  entitled  to  use  and  enjoy  the  waters  thereof;  or  if 
such  persons  are  very  numerous,  one  or  more  of  such 
persons  shall  be  named  as  defendants,  and  all  other  per- 
sons claiming  to  be  entitled  to  use  or  enjoy  the  waters 
of  such  works  shall  be  made  parties  defendant  by  the 
title:  "All  other  consumers  of  water"  from  such  works, 
designating  the  same. 


150  REPORT   OF   THE   COMMISSION 

SEC.  15.  Upon  the  filing  of  such  complaint,  the  Clerk 
of  the  Court  shall  issue  a  summons  as  in  other  cases, 
save  that  the  same  shall  be  made  returnable  not  less 
than  thirty  days  thereafter,  and  the  plaintiff  in  such 
action  shall  cause  the  same  to  be  published  for  at 
least  four  weeks  consecutively  next  before  the  return 
day  thereof,  in  at  least  one  public  newspaper  published 
in  each  county  wherein  the  said  works  are  situate,  or 
wherein  the  waters  therefrom  have  been  theretofore> 
so  far  as  known,  customarily  used;  or  in  case  there 
be  no  such  newspaper  published  in  any  one  of  such 
counties,  shall  cause  the  said  summons  to  be  posted  in 
at  least  five  public  places  in  such  county  for  at  least  four 
weeks  prior  to  the  return  day  thereof. 

SEC.  1 6.  At  any  time  within  ten  days  after  the  re- 
turn day  of  such  summons,  or  afterwards  by  leave  of  the 
Court,  any  person  claiming-  to  be  entitled  to  the  use  or 
enjoyment  of  water  from  such  works  may  appear  and  be 
made  party  in  the  said  cause,  either  as  plaintiff  or  defend- 
ant, setting  forth  either  by  supplementary  complaint,  or 
by  answer,  the  claim  made  by  him  to  the  use  of  water 
from  such  works,  and  the  same  particulars  touching 
such  claim  of  right  as  above  required  in  the  complaint. 
And  thereupon  the  Court  shall  appoint  a  Referee  to  at- 
tend at  such  times  and  in  such  places  in  the  several 
counties  as  may  be  fixed  in  the  order  of  the  Court  in 
that  behalf,  to  hear  and  report  to  the  Court  all  such  tes- 
timony as  may  be  produced  before  him  touching  the 
amount  of  water  lawfully  diverted,  carried  or  stored  by 
such  works  within  reasonable  time  after  the  commence- 
ment thereof,  and  the  names  of  the  persons  who  first 
used  or  enjoyed  the  same  to  the  amount  to  which  the 
same  were  or  may  be  reasonably  sufficient  for  the  uses 
to  which  the  same  were  or  are  applied,  their  heirs  or  as- 
signs; the  several  times  when  such  persons  first  began 
to  use  and  enjoy  such  waters  and  the  uses  to  which  the 
same  were  applied  as  aforesaid;  and  touching  any  aban- 


CONCERNING    Till-;    WATl-KS    <>I     TIN-;    STATE,        l."»l 

donment  or  loss  by  any  such  persons  of  their  right  in 
that  behalf;  and  touching  any  other  matter  or  thing 
which  may  be  set  down  in  the  order  of  the  Court  as  a 
proper  matter  of  inquiry.  Provided,  That  wherever  in 
the  case  of  works  constructed  or  used  for  supplying 
water  for  irrigation,  a  decree  has  been  had  pursuant  to 
the  eighth  Article,  establishing  the  rights  and  priorities 
of  the  several  appropriators  of  water  in  such  Water 
Division,  such  decree  shall  be  deemed  and  taken  to  be 
conclusive  as  between  the  proprietors  of  such  works  and 
those  entitled  to  enjoy  and  use  the  waters  therefrom,  as 
to  the  maximum  capacity  of  such  works,  unless  it  shall 
be  made  to  appear  that  subsequent  to  the  entry  of  such 
decree  the  proprietors  of  such  works  have  by  appropria- 
tion or  otherwise  become  entitled  to  divert,  carry  or 
store  other  waters. 

SEC.  17.  Every  such  Referee  shall,  before  entering 
upon  the  discharge  of  his  duties  under  such  appointment, 
file  in  the  office  of  the  Clerk  of  the  Court  the  oath  re- 
quired by  the  eighth  Article,  and  at  the  several  times 
and  places  named  in  the  order  of  the  Court  in  that  be- 
half, shall  attend  and  hear  and  reduce  to  writing  all  tes- 
timony which  may  be  offered  by  any  person  touching 
the  matters  named  in  the  order  of  the  Court  in  that 
behalf,  and  shall  in  all  respects  touching  such  hearing, 
proceed  in  manner  as  specified  in  the  eighth  Article  for 
the  government  of  the  Referee  therein  mentioned,  so  far 
as  such  requirements  can  be  made  reasonably  applicable. 

SEC.  18.  Any  person  claiming  to  be  in  any  manner 
entitled  to  have,  use  or  enjoy  any  part  or  share  of  the 
waters  at  any  time  diverted,  conveyed  or  stored  by  means 
of  such  works,  may  in  person  or  by  counsel  appear  before 
the  Referee  and  present  testimony  touching  his  claim  in 
that  behalf  and  the  claim  made  by  or  in  behalf  of  any 
other  person,  and  cross-examine  the  witnesses  produced 
by  any  other  person,  and  object  to  any  testimony  offered 
by  or  in  behalf  of  any  other  person. 


]  ~r2  REPORT   OF   THE   COMMISSION 

SEC.  19.  Upon  the  completion  of  the  testimony  be- 
fore him  the  Referee  shall  file  the  depositions  and  all 
documentary  evidence  produced  before  him  in  the  office 
of  the  Clerk  of  the  Court,  together  with  his  report  of  his 
actings  and  doings  as  such  Referee,  and  the  Court  or 
Judge  thereof  shall  thereupon  appoint  a  day  when  excep- 
tions thereto  will  be  heard,  and  at  any  time  prior  to  the 
day  so  appointed,  or  afterwards  by  leave  of  the  Court, 
any  person  may  file  exceptions  to  any  of  the  testimony 
heard  before  the  Referee,  or  to  any  of  the  proceedings  of 
the  Referee  in  or  about  refusing  to  receive  any  testimony, 
or  denying  to  any  person  reasonable  opportunity  to  be 
heard;  and  the  Court,  at  the  day  appointed  for  hearing 
such  exceptions,  shall  proceed  in  like  manner  as  pro- 
vided in  the  eighth  Article  touching  the  report  of  the 
Referee  therein  mentioned,  and  may,  if  he  shall  deem  it 
necessary,  order  a  further  reference  of  the  matter  to  the 
same  or  another  Referee,  or  hear  further  testimony  in 
open  Court  upon  some  day  proper  and  convenient,  by 
him  appointed  for  the  purpose. 

SEC.  20.  Whenever  any  testimony  shall  be  heard  in 
open  Court,  the  same  shall  be  at  the  time  reduced  to 
writing  and^  certified  by  the  Court,  and  together  with 
the  report  of  the  Referee  shall  be  deemed  and  taken  to 
be  part  of  the  record  in  the  said  cause. 

SEC.  21.  After  the  testimony  shall  have  been  com- 
pleted, and  all  exceptions  to  the  report  of  the  Referee 
determined,  the  Court  shall  appoint  some  convenient 
day,  not  less  than  thirty  days  thereafter,  for  final  hear- 
ing, and  shall  cause  a  notice  of  such  final  hearing  and 
the  time  and  place  appointed  therefor,  to  be  published 
in  at  least  one  public  newspaper  in  each  county  wherein 
the  said  works  may  be  situate,  or  wherein  any  part  of 
the  waters  thereby  diverted,  carried  or  stored  may  be 
customarily  used. 

SEC.  22.  Upon  the  final  hearing  the  Court  shall  by 
its  decree  ascertain  and  determine: 


/^ 


CONU-:KNIN<;  TIM-   \VATI-RS  OF  THE  STATI: 


/•>'/  A/  —  The  amount  of  water  actually  diverted  and 
carried  or  stored  in  such  works  and  applied  to  beneficial 
uses  within  reasonable  time  after  the  commencement 
thereof. 

Second  —  The  amount  to  which  the  water  customarily 
diverted  or  carried  or  stored  therein  was  reasonably  suf- 
ficient for  the  uses  to  which  the  same  was  applied. 

Third  —  The  names  of  the  persons  first  using  the 
waters  aforesaid  to  the  amount  aforesaid. 

Fourth  —  The  names  of  the  persons,  successors  in 
interest  to  those  first  using  such  waters,  to  the  amount 
aforesaid,  and  the  several  amounts  to  which  the  said 
persons  are  entitled  to  the  use  of  such  waters,  and  the 
purposes  for  which,  and  the  lauds,  works  or  places  in 
respect  to  which,  the  same  have  been  theretofore  and 
then  are,  customarily  used. 

Fifth  —  The  same  matters  and  things  touching  each 
enlargement  of  such  works  theretofore  made;  and 

Sixth  —  The  names  of  all  other  persons  who  by  means 
of  any  grant,  covenant  or  license  of  the  proprietor  of 
such  works  are  entitled  to  th'e  use  of  such  waters;  and 
shall  by  its  decree  declare  that  as  against  the  persons 
first  using  the  waters  actually  diverted,  carried,  collected 
or  stored  by  means  of  such  works  to  the  amount  to  which 
the  same  were  reasonably  sufficient  and  efficient  for  the  ser- 
vice to  which  the  same  were  applied,  their  heirs,  succes- 
sors and  assigns,  all  subsequent  grants,  covenants,  agree- 
ments and  licenses  for  the  use  of  waters  from  the  said 
works,  were  and  are  absolutely  void,  and  shall  restrain 
and  enjoin  the  propietors  of  such  works,  their  heirs, 
successors  and  assigns  from  delivering  or  permitting  to 
flow  out  of  such  works  any  water  whatsoever,  until  the 
persons  first  having  so  used  and  enjoyed  the  waters 
thereof  to  the  amount  to  which  the  same  were  reason- 
ably sufficient  for  the  uses  to  which  the  same  were 

applied,  their  heirs  and  assigns,  shall  have  received  the 
•jo 


154  REPORT  OF  THE  COMMISSION 

amounts  to  which  they  appear  by  the  said  decree  to  be 
severally  entitled;  and  as  to  all  such  subsequent 
grantees,  lessees  and  covenantees  shall  decree  them  en- 
titled to  enjoy  such  waters,  as  of  the  date  when  they  or 
their  predecessors  in  interest  first  began  to  use  and 
enjoy  the  same,  and  only  to  the  extent  of  such  use  and! 
enjoyment. 

SEC.  23.  Costs  shall  be  adjudged  in  such  cases  as  to 
the  Court  shall  seem  equitable. 

SEC.  24.  Where  in  any  case  grants,  agreements,  or 
licenses  have  been  made  or  entered  into  or  granted  by 
the  proprietors  of  any  such  works  for  the  delivery  or  use 
of  water  therefrom  by  the  inch  or  acre,  or  otherwise 
than  by  the  cubic  foot  per  second  of  time,  the  Court 
shall  ascertain  and  determine  the  amount  of  water  to 
which  such  grantee  or  licensee  is  entitled  in  cubic  feet 
per  second. 

SEC.  25.  Appeals  and  writs  of  error  shall  lie  for 
reviewing  any  such  final  decree  in  like  manner  as  pre- 
scribed in  the  eighth  Article,  and  such  appeal  shall  be 
prosecuted  and  proceeded  in  as  therein  prescribed. 

SEC.  26.  The  proprietors  of  any  ditch,  conduit, 
reservoir  or  other  works  for  the  diversion,  carriage,, 
retention  or  storage  of  waters,  may  procure  the  waters 
to  which  they  are  entitled,  to  be  carried,  stored  and  dis- 
tributed from  and  through  like  works  of  any  other  pro- 
prietor upon  such  terms  as  may  be  agreed  upon  between 
them  without  in  any  manner  impairing  or  affecting  their 
right  of  priority  in  respect  of  such  waters;  Provided^ 
however,  That  thereby  the  waters  supplied  to  any  con- 
sumer be  not  diminished;  And  provided,  further,  That 
no  such  agreement  shall  be  carried  into  effect  until  the 
original  thereof  be  filed  in  the  office  of  the  State  Engi- 
neer, and  the  State  Engineer  shall  certify  to  the 
persons  so  agreeing  his  approval  thereof.  The  State 
Engineer  may  at  any  time  withdraw  such  approval  and 


CONCl.RMNV.    THI.    WATERS   OF    Till-    STATE        156 

prohibit  the  further  carrying  into  effect  of  such  agree- 
ment, if  it  shall  appear  to  him  that  the  proprietors  of 
other  works  or  those  consuming  waters  therefrom,  are 
injured  by  means  thereof. 

During  the  time  of  the  carrying  into  effect  of  such 
agreement  no  water  shall  be  turned  into  the  ditch  or 
other  works  first  named  at  the  head  thereof  and  seepage 
waters  collected  therein  shall  always  be  turned  out  of 
the  same  into  the  ditch,  conduit,  reservoir  or  other  works 
next  below,  without  distributing  or  using  such  seepage 
or  flood  waters. 


ARTICLE   X. 

PROVISIONS  FOR  REGULATING  THE  PROCEEDINGS  OF  THE  BOARD 
OF  COUNTY  COMMISSIONERS  IN  DETERMINING  THE  RATES  OF 
COMPENSATION  TO  BE  CHARGED  FOR  THE  USE  OF  WATER. 

SECTION  i.  Whenever  the  proprietor  or  proprietors 
of  any  ditch,  conduit,  reservoir  or  other  works  con- 
structed for  the  diversion,  conveyance  or  storage  of 
water  for  distribution  among  such  proprietors  or  the 
members  or  shareholders  in  the  corporation  holding  or 
owning  such  works,  or  others,  or  any  person  entitled  or 
claiming  to  be  entitled  to  the  use  of  water  from  such 
works,  shall  present  to  the  Board  of  Commissioners  of 
such  county,  wherein  such  persons  are  using  or  enjoy- 
ing, or  entitled  to  use  or  enjoy  water  from  such  works, 
at  any  session  thereof,  regular  or  special,  a  petition  pray- 
ing the  Board  to  proceed  to  fix  reasonable  maximum 
rates  of  compensation  to  be  charged  for  the  use  of  water 
from  such  ditch,  conduit  or  reservoir  within  such 
county,  showing  reasonable  cause  for  such  application 
and  verified  by  the  affidavit  of  the  petitioner,  such 
Board  of  Commissioners  shall  examine  the  same,  and  if 
from  such  petition,  or  from  affidavits  or  testimony  pro- 
duced in  support  thereof,  they  shall  be  of  the  opinion 
that  such  application  is  made  in  good  faith,  and  that 


156  REPORT   OF   THE   COMMISSION 

there  is  reasonable  ground  to  believe  that  the  rates 
charged  or  proposed  to  be  charged  by  the  proprietors  of 
such  works  are  excessive,  or  that  for  any  reason  the 
rates  of  compensation  to  be  charged  for  the  use  of 
water  from  such  works  ought  to  be  fixed,  they  shall 
enter  an  order  appointing  a  day,  not  less  than  twenty 
days  thereafter,  nor  later  than  the  third  day  of  the  next 
regular  session  of  such  Board,  when  they  will  hear  all 
parties  interested  in  such  works,  or  in  procuring  water 
therefrom,  for  any  uses  whatsoever,  touching  the  rates 
to  be  charged  for  the  use  of  water  therefrom;  and  the 
Clerk  of  the  Board  shall  cause  such  order  to  be  pub- 
lished in  at  least  one  public  newspaper  published  in 
such  county,  at  lest  ten  days  prior  to  the  time  appointed 
for  such  hearing. 

SEC.  2.  The  petitioner  in  such  petition  shall,  within 
five  days  after  the  entry  of  such  order,  cause  copies 
thereof,  conspicuously  printed,  in  type  not  less  iri  size 
than  the  type  known  as  great  primer,  to  be  posted  in  at 
least  ten  or  more  public  places  in  that  part  of  such 
county  to  which  water  is  supplied  from  such  works,  and 
shall,  if  such  petition  be  not  presented  by  or  on  behalf 
of  the  proprietors  of  such  works,  cause  a  copy  of  such 
order  to  be  also  served  upon  some  one  or  more  of  the 
proprietors  of  such  works,  the  president  or  other  chief 
officer  of  the  association,  corporation,  proprietors  of 
such  works,  if  the  same  be  owned  by  a  corporation,  or 
upon  the  superintendent  thereof,  at  least  ten  days  prior 
to  the  day  appoited  for  such  hearing.  Such  service  may 
be  made  either  by  delivery  of  a  copy  of  the  order  per- 
sonally to  such  proprietor  or  officer,  or  by  leaving  such 
copy  at  his  usual  place  of  abode  with  some  person  over 
the  age  of  fifteen  years,  and  informing  such  person  of 
the  nature  and  contents  thereof.  If  such  works  be 
owned  by  an  association  or  corporation  and  no  such 
officer  or  superintendent  thereof  can  be  found,  service 
of  the  said  notice  may  be  made  upon  any  member  or 
shareholder  therein,  other  than  the  petitioner. 


'9 


CONCERN  INC,   Till'.    WATi.kS   OF   THE    STATE,       l.~>7 

SKC.  3.  If  no  one  of  the  proprietors  of  such  works, 
and  no  nu-niber  or  shareholder  of  the  association  or  cor- 
poration owning  the  same  can  be  found  at  the  county 
where  said  proceedings  are  instituted,  service  of  a  copy 
of  such  order  may  be  made  at  any  other  county,  or  by 
publication  at  said  county  where  the  proceedings  shall 
be  pending,  for  the  additional  space  of  twenty  days. 

SEC.  4.  Proof  of  the  service  of  such  order  may  be 
made  by  the  affidavit  of  any  disinterested  person  cog- 
nizant of  the  facts,  and  proof  of  the  publication  thereof 
by  affidavit  of  the  publisher  of  the  newspaper  wherein 
publication  is  had. 

SEC.  5.  If  at  the  day  so  appointed  for  the  hearing 
of  such  petition,  due  service  of  such  order  hath  not 
been  had  upon  the  proprietor  or  proprietors  of  such 
works,  or  publication  made  in  lieu  thereof,  or  if  such 
order  hath  not  been  posted  and  published  as  herein 
required,  the  Board  shall  adjourn  the  hearing  of  such 
petition  for  a  sufficient  time  in  order  that  the  defect  of 
notice  in  that  behalf  may  be  supplied;  and  the  Board 
shall  not  proceed  to  hear  or  determine  such  petition 
until  due  publication  and  posting  of  such  order  and  due 
service  thereof  on  the  proprietor  or  proprietors,  or  pub- 
lication in  lieu  of  such  service,  as  herein  above  required. 

SEC.  6.  When  it  shall  appear  to  the  Board  that  the 
foregoing  requirements  touching  the  publication,  post- 
ing and  service  of  such  order  have  been  complied  with, 
the  Board  shall  proceed  to  hear  and  determine  such 
petition  without  unnecessary  delay.  All  persons  inter- 
ested in  the  said  works,  or  entitled,  or  claiming  to 
be  entitled  to  the  use  or  enjoyment  of  water  there- 
from at  the  said  county  wherein  the  proceedings  are 
pending,  shall  be .  entitled  to  attend  and  be  heard 
either  in  person  or  by  counsel  touching  the  said  appli- 
cation, and  to  produce  evidence  touching  the  original 
cost  of  such  works,  and  of  all  additions  thereto  or 
enlargements  thereof,  and  repairs  and  replacements 


158  REPORT   OF  THE   COMMISSION 

thereof,  or  of  any  part  or  appurtenances  thereof,  and  the 
reasonable  value  at  the  time  of  such  hearing,  and  the 
reasonable  annual  cost  and  expense  of  the  maintenance 
and  operation  thereof,  and  of  the  distribution  of  water 
therefrom,  and  the  capacity  thereof,  and  the  amount  of 
water  consumed  or  furnished  therefrom  as  originally 
constructed,  and  subsequent  to  any  enlargement  thereof, 
either  for  the  use  of  the  proprietors  or  others,  and  the 
amount  of  loss  or  waste  therefrom  by  evaporation  or 
seepage,  and  touching  any  other  matter  or  thing  which 
may  affect  the  reasonable  maximum  rates  which  ought 
to  be  charged  to  the  several  classes  of  persons  using 
water  therefrom,  for  the  use  of  water  to  be  furnished 
or  delivered  from  such  works. 

SEC.  7.  Upon  hearing  and  consideration  of  the  evi- 
dence which  may  be  produced  before  them,  as  well  as 
the  arguments  of  counsel  attending,  if  any,  the  said 
Board  of  Commissioners  shall  enter  an  order  naming  the 
ditch,  conduit,  reservoir  or  other  works  in  question,  or 
otherwise  describing  the  same  with  reasonable  certainty 
and  fixing  reasonable  maximum  rates  of  compensation 
to  be  charged  for  water  to  be  delivered  out  of  such 
works  for  use  within  such  county  for  any  purpose 
whatsoever. 

SEC.  8.  Every  such  order  shall  adjust  such  rate 
according  to  the  distance  of  carriage,  and  so  that  for 
each  mile  or  fraction  thereof,  not  less  than  one-half 
mile,  through  which  the  water  is  carried,  a  reasonable 
increase  be  made  in  the  maximum  rate  to  be  charged  in 
that  behalf;  and  whenever  it  shall  appear  that  there 
hath  been- an  enlargement  or  enlargements  of  the  ditch, 
conduit  or  reservoir,  and  that  those  using  the  waters 
diverted,  collected  or  stored  by  means  of  such  enlarge- 
ment are  customarily  or  frequently  in  times  of  scarcity 
deprived  of  water,  when  those  using  the  waters  diverted 
conveyed,  collected  or  stored  by  means  of  such  works  as 
'  originally  constructed  are  receiving  water,  or  wherever 


u^ 


CONCERNING   THE   WATERS  OF   Till,    si  All         I  .V.f 

the  proprietors  of  any  works  for  the  diversion  and  con- 
veyance of  water  have  agreed  for  delivery  thereof  in 
excess  of  the  amount  customarily  carried  in  such  works, 
and  the  persons  with  whom  such  agreements  have  been 
made,  or  any  of  them,  or  their  successors  in  interest, 
shall  collect  and  store  water  and  deliver  the  same  to  such 
carrier  to  an  amount  not  exceeding  the  capacity  of 
such  works,  a  reasonable  diminution  shall  be  made  in 
the  maximum  rate  to  be  charged  to  those  using  the 
waters  diverted,  collected,  retained  or  stored  by  means  of 
such  enlargement,  or  those  collecting  and  storing  water 
to  be  carried  in  such  ditch  or  conduit;  and  the  maximum 
rate  prescribed  to  be  charged  to  those  using  the  water  dur- 
ing the  whole  of  the  year,  may  be  varied  from  that  pre- 
scribed to  be  exacted  of  those  using  the  same  during  only 
the  irrigating  season,  or  some  part  of  the  year;  and  a 
greater  maximum  rate  may  be  prescribed  to  be  exacted 
from  those  using  the  water  only  occasionally,  or  during 
brief  spaces  of  time,  than  that  prescribed  to  be  exacted 
from  those  customarily  using  the  same;  and  the  rate  to 
be  exacted  for  waters  stored  in  reservoirs  may  be  varied 
from  the  rate  prescribed  to  be  charged  for  water  delivered 
without  storage,  according  as  right  and  justice  may  seem 
to  require.  Every  such  order  shall  be  in  force  for  the 
term  of  two  years  next  thence  ensuing,  unless  reversed 
or  modified  upon  appeal  or  writ  of  error  as  herein  pro- 
vided, or  upon  like  notice  as  herein  required  upon  the 
original  petition,  and  due  cause  shown  therefor,  the  same 
shall  be  changed  by  the  board  of  County  Commissioners, 
and  until  other  order  made  in  the  premises,  after  the 
lapse  of  such  period. 

SEC.  9.  If  it  shall  appear  to  the  Board  that  the  rates 
theretofore  customarily  charged,  or  proposed  to  be 
charged,  by  the  proprietors  of  such  works,  for  the  use 
of  water  therefrom,  have  not  been  nor  are  unreasonable, 
or  excessive,  and  that  to  prescribe  or  fix  the  maximum 
rate  is  unnecessary  or  inexpedient,  the  Board  may  dis- 


160  REPORT   OF  THE   COMMISSION 

miss  the  petition,  or  in  their  discretion,  adjourn  the 
matter  to  another  day;  and  continuances  of  the  hearing 
may  be  granted  from  day  to  day  or  for  any  time,  in  the 
discretion  of  the  Board. 

SEC.  10.  Depositions  may  be  taken  to  be  read  before 
the  Board  of  Commissioners  upon  the  hearing  of  the 
said  petition  in  like  case  and  manner,  and  upon  like 
notice  given,  as  required  in  causes  pending  in  the  Dis- 
trict Court. 

SEC.  n.  Any  member  of  the  Board  may,  under  his 
hand  and  seal,  issue  subpoenas,  or  subpoenas  duces  tecum, 
requiring  the  attendance  of  witnesses  to  testify  in  such 
matter  before  the  Board  at  any  day  and  hour  which  may 
be  named  therein;  all  which  subpoenas  may  be  served  by 
the  Sheriff  or  any  Constable  of  the  county,  or  other  person 
whomsoever;  and  the  Board  may,  by  subpoena  or  other- 
wise, require  the  proprietor  of  the  works,  or  any  officer, 
agent,  clerk,  servant  or  employe  of  the  corporation  or 
association,  proprietor  of  the  said  works  to  attend  and 
produce  at  the  said  hearing  any  book,  paper  or  writing 
containing,  or  supposed  to  contain  evidence  pertinent  to 
the  matter  in  question. 

SEC.  12.  Any  member  of  the  Board  may  administer 
an  oath  or  affirmation  to  any  witness  produced  before  it 
upon  any  such  hearing;  and  any  person  who  shall  testify 
falsely,  after  being  duly  sworn  or  affirmed  as  a  witness, 
shall  be  deemed  guilty  of  perjury  and  upon  conviction 
be  punished  accordingly. 

SEC.  13.  The  Sheriff  or  any  Constable  of  said  county 
serving  any  subpoena,  order  or  other  process  in  such  pro- 
ceeding, shall  be  entitled  to  the  same  compensation  as 
in  case  of  like  process  out  of  the  District  Court. 


SEC.  14.     Witnesses  shall  be  entitled  to  the 
diem  and  mileage  as  witnesses  attending  in  the  District 
Court  of  the  same  county. 


.  HI     \v  \Ti-KS  <>i;  THI-;   STATE.      I  «'>! 

She.  is.  Any  person  failing  to  obey  the  snbjxL-iui  of 
the  Board,  or  any  member  thereof,  in  any  such  proceed- 
ing, upon  pay  men  tor  tender  of  his  lawful  compensation  in 
that  behalf,  shall,  on  proof  of  such  service,  and  payment 
or  tender,  and  the  non-attendance  of  the  witness,  before 
the  District  Court,  or  before  the  Judge  thereof  in  vaca- 
tion, be  attached  for  his  contempt  in  that  behalf,  and 
punished  by  such  District  Court  or  Judge  thereof,  if  no 
reasonable  excuse  for  his  default  be  shown,  as  in  case  of 
like  contempts  of  such  District  Court. 

SEC.  16.  If  it  shall  appear  to  the  Board  upon  such 
hearing  that  the  rates  theretofore  customarily  charged 
by  the  proprietors  of  such  works,  or  proposed  to  be 
charged  for  the  use  of  water  therefrom,  are  excessive 
and  extortionate,  the  cost  of  such  "proceeding  shall  be 
taxed  against  the  proprietors  of  such  works.  If  it  shall 
appear  to  the  Board  that  such  petition  was  presented 
without  any  good  cause  therefor,  the  costs  shall  be  taxed 
against  the  petitioner.  In  other  case  the  costs  shall  be 
divided  as  to  the  Board  shall  seem  equitable.  No  party 
shall  be  permitted  to  examine  more  than  four  witnesses 
to  establish  the  same  matter  of  fact. 

SEC.  17.  If  either  member  of  the  Board  of  County 
Commissioners,  wherein  such  petition  is  presented,  be 
interested  in  the  works  named  in  such  petition,  as  pro- 
prietor or  incumbrancer  thereof,  or  be  a  consumer  of 
water  therefrom  for  any  purpose  whatsoever,  he  shall 
cause  the  fact  of  such  interest  to  be  suggested  and  en- 
tered of  record,  and  thereupon  an  order  shall  be  made 
changing  the  venue  in  such  proceeding  to  some  other 
county  where  no  part  of  the  ditch,  conduit  or  other 
works  named  in  such  petition  is  situate,  and  where  no 
water  from  such  works  is  furnished  to  the  inhabitants  of 
such  count}-. 

SEC.  18.  If  the  proprietors  of  such  works  or  any 
consumer  of  water  therefrom,  shall  file  with  the  Board  of 
County  Commissioners,  before  which  such  petition  is 


162  REPORT  OF   THE   COMMISSION 

pending,  a  petition  showing  such  interest  as  above  pre- 
scribed, or  that  by  reason  that  either  of  the  said  County 
Commissioners  is  prejudiced  for  or  against  the  proprietor 
or  proprietors  of  said  works,  or  any  of  them,  or  is  re- 
lated to  them  or  any  of  them,  or  hath  been  of  counsel 
for  the  proprietors  of  such  works,  or  any  of  them,  touch- 
ing the  matter  of  controversy  in  said  petition  mentioned, 
or  that  the  proprietors  of  such  works  have  an  undue  in- 
fluence over  the  minds  of  the  inhabitants  of  said  county 
wherein  the  petition  is  pending,  or  that  the  inhabitants 
of  such  county  are  prejudiced  for  or  against  the  proprie- 
tors of  such  works,  so  that  a  fair  determination  of  the 
matter  cannot  be  expected,  and  shall  verify  such,  petition 
by  affidavit,  such  Board  of  County  Commissioners  shall 
consider  the  same  and  all  counter  petitions  and  affidavits, 
touching  the  matter,  which  may  be  presented,  and  if  of 
the  opinion  that  the  matters  and  things  in  such  petition 
alleged  as  cause  for  change  of  the  venue  of  such  petition 
are  true,  shall  order  such  petition  to  be  sent  to  the  Board 
of  Commissioners  of  some  other  proper  county  where 
such  cause  of  objection  doth  not  exist  ;  Provided^  how- 
ever, That  no  change  of  venue  shall  be  allowed  in  such 
case  until  due  publication,  posting  and  service  of  the 
order  for  hearing,  as  herein  above  prescribed,  has  been 
had. 

SEC.  19.  At  the  time  of  the  entry  of  any  such 
order  for  the  change  of  venue  of  such  petition,  such 
Board  of  County  Commissioners  shall  also  by  order  fix 
a  time  not  less  than  ten  clays  thereafter  when,  at  some 
convenient  place  in  their  county,  to  be  named  in  such 
order,  depositions  may  be  taken  before  some  Justice  of 
the  Peace,  Notary  Public  or  Clerk  of  the  District  Court, 
or  County  Court,  in  behalf  of  every  person  interested 
in  the  question  of  the  reasonable  maximum  rates  which 
ought  to  be  charged  for  the  use  of  water  supplied  from 
such  works,  or  any  matter  of  fact  bearing  upon  the 
question;  and  at  the  time  and  place  named  in  such  order 


CONCERNING   Till-    WATERS   OF   Till'    STATE.       Hi.'* 

and  from  thence  from  day  to  day,  or  as  the  convenience 
of  the  parties  may  require,  the  Justice  of  the  Peace, 
Notary  Public  or  other  officer  named,  shall  attend  at  the 
place  in  such  order  mentioned,  and  take  the  depositions 
of  all  witnesses  produced  before  him  by  any  party,  for 
examination;  and  any  party  claiming  to  be  interested  in 
the  controversy  may  attend  and  examine  or  cross 
examine  every  such  witness.  Such  depositions  shall  be 
reduced  to  writing  by  or  under  direction  of  such  officer, 
in  the  narrative  form,  (save  where  as  to  any  particular 
matter  any  party  may  request  that  the  interrogatory  and 
answer  be  set  down,)  and  upon  the  completion  of  the 
examination  of  all  witnesses  produced,  the  same  shall 
be  certified  to  by  the  officer  taking  the  same,  and  trans- 
mitted to  the  Clerk  of  the  Board  of  County  Commis- 
sioners of  the  county  to  which  the  venue  is  changed. 
Every  such  deposition  shall  show  and  set  forth  in  whose 
behalf  the  witnesses  are  severally  produced;  and  the 
officer  shall  affix  a  memorandum  subscribed  by  him, 
showing  by  whom  the  fees  of  such  witnesses  for  their 
attendance,  and  his  fees  for  the  taking  of  such  deposi- 
tions are  paid,  and  the  amount  of  such  fees. 

SEC.  20.  Forthwith  after  the  entry  of  any  such  order 
for  the  change  of  the  venue  of  such  petition,  the  Clerk  of 
the  Board  of  County  Commissioners  shall  certify  a  copy 
of  such  order  and  all  other  orders  and  proceedings  had 
by  the  Board  in  the  matter  of  such  petition,  and  attach 
thereto  the  original  petition,  and  all  affidavits  and  other 
proceedings  had  or  filed  therein,  and  transmit  the  same 
to  the  Clerk  of  the  Board  of  County  Commissioners  to 
which  the  venue  is  changed. 

SEC.  21.  At  the  next  regular  session  of  the  Board 
of  Commissioners  of  the  county  last  named,  like  pro- 
ceedings shall  be  had  as  above  prescribed  for  the  Board 
of  Commissioners  of  the  county  wherein  such  petition 
was  presented. 


164  REPORT   OF  THE  COMMISSION 

SEC.  22.  An  appeal  or  writ  of  error  shall  lie  in  be- 
half of  the  proprietors  of  such  works,  or  any  person 
iising  or  claiming  to  be  entitled  to  use  water  therefrom, 
for  review  in  the  Supreme  Court  of  every  final  order 
upon  such  petition;  and  the  party  appealing  may  assign 
for  error  not  only  the  final  order,  but  the  order  of  the 
Board  of  County  Commissioners  wherein  such  petition 
was  presented,  refusing  or  denying  any  petition  for 
change  of  venue  presented  therein;  Provided,  however, 
That  such  appeal  be  prayed  within  thirty  days,  and 
such  writ  of  error  sued  out  or  applied  for  within  two 
years,  next  after  the  entry  of  such  final  order. 

SEC.  23.  The  petition  and  all  affidavits,  the  petition 
for  change  of  venue,  affidavits  supporting  or  controvert- 
ing the  same,  and  depositions  filed  in  the  matter,  -shall 
be  deemed  and  taken  as  part  of  the  record  upon  such 
appeal  or  writ  of  error;  and  all  evidence  heard  orally 
shall  be  made  part  of  the  record  by  bill  of  exceptions  or 
certificate  subscribed  by  such  Board  of  County  Commis 
sioners,  or  any  two  of  them,  and  filed  with  the  Clerk  of 
the  Board  at  any  time  within  ninety  days  after  the  entry 
of  such  final  order. 

SEC.  24.  If  in  any  case  no  two  of  the  Board  of 
County  Commissioners,  wherein  such  final  order  is  pre- 
sented, will  allow  such  bill  of  exceptions  or  certificate 
of  testimony,  it  shall  be  lawful  for  the  party  represent- 
ing the  same  to  take  the  affidavit  of  two  or  more  persons 
present  at  the  hearing,  and  when  the  testimony  set  forth 
in  such  bill  of  exceptions  or  certificate  was  given,  as 
therein  set  forth,  that  the  same  is  correct  and  true,  and 
when  so  attested  and  proved  by  affidavit,  the.  same  shall 
be  filed  by  the  Clerk  and  become  part  of  the  record  in 
like  manner,  and  with  like  effect,  as  if  signed  by  two  of 
the  County  Commissioners. 

SEC.  25.  No  such  appeal  or  writ  of  error  shall  oper- 
ate as  a  supersedeas,  save  by  order  of  the  Supreme  Court, 
or  one  of  the  Justices  thereof,  and  bond  given  payable  to 


£ONCKRNIN<;    TIM-    \V.\TKRS    OF    TIM-     STATE, 


The  People  of  the  State  of  Colorado,  with  sureties  ap- 
proved by  the  Clerk  of  the  Supreme  Court  (or  the  Clerk 
of  some  District  Court  when  the  order  so  directs)  and 
conditioned  for  the  due  prosecution  of  such  appeal  or 
writ  of  error,  and  to  make  good  all  damages  which  may 
be  sustained  by  any  person  by  reason  of  such  superse- 
deas.  Such  bond  shall  be  in  such  sum  as  may  be  fixed 
and  prescribed  in  the  order  allowing  the  supersedeas. 

SEC.  26.  In  every  such  appeal  or  writ  of  error, 
where  presented  in  behalf  of  the  proprietors  of  such 
works,  the  appellees  or  defendants  in  error  shall  be  des- 
ignated as  "The  Consumers  of  Water  in  ____________ 

County,"  from  such  ditch,  canal  or  other  works,  naming 
the  same.  The  scire  facias  to  hear  errors  shall  be  served 
upon  the  petitioner  in  such  petition,  if  he  can  be  found, 
and  shall  be  published  in  at  least  one  public  newspaper 
of  the  county  wherein  the  petition  was  originally  pre- 
sented, for  at  least  thirty  days  prior  to  the  hearing,  and 
such  publication  shall  be  deemed  to  confer  jurisdiction 
upon  the  Supreme  Court  in  respect  to  all  persons. 
Whenever  any  individual,  consumer  or  any  person 
claiming  to  be  entitled  to  water  from  such  works,  shall 
be  appellant  or  plaintiff  in  error,  the  proprietors  of  such 
works  shall  be  designated  as  the  appellees  or  defendants 
in  error.  In  either  case  all  persons  whomsoever  claim- 
ing to  be  interested  in  the  question  shall  be  heard  by 
counsel  in  the  Supreme  Court. 

SEC.  27.  Save  as  herein  provided,  the  proceedings 
upon  such  appeal  or  writ  of  error,  shall  be  as  in  other 
cases,  as  near  as  may  be. 

SEC.  28."  The  costs  of  such  appeal  or  writ  of  error 
shall  be  adjudged  in  the  discretion  of  the  Court. 


166  REPORT   OF  THE   COMMISSION 

• 

ARTICLE    XL 

OF  THE  ROTATION    OF  WATER. 

SECTION  i.  The  several  persons  entitled  to  the  use 
of  the  water  diverted,  carried,  collected  or  stored  by 
means  of  any  ditch,  conduit,  reservoir  or  other  works, 
or  the  waters  lawfully  alloted  to  or  carried  by  any  lat- 
eral, sub-lateral  or  distributing  conduit,  of  any  ditch, 
conduit  or  other  works,  supplying  water  to  two  or  more 
consumers,  may  in  writing  agree  among  themselves, 
that  the  waters  of  such  ditch,  conduit,  reservoir,  lateral 
or  other  works  may  and  shall  be  rotated,  distributed  and 
delivered  upon  particular  days  or  parts  of  days  to  partic- 
ular consumers,  and  on  other  days  to  other  consumers, 
as  may  be  in  such  agreement  specified;  and  any  such 
agreement  may  provide  for  such  rotation  during  any  one 
season,  or  part  of  season;  and  at  the  expiration  of  the 
time  therein  mentioned  the  rights  of  all  the  parties  shall 
be  the  same  as  previous  to  the  making  of  such  agree- 
ment. 

SEC.  2.  Any  number  of  the  consumers  of  water  from 
any  ditch,  conduit  or  reservoir,  or  any  lateral  or  dis- 
tributing conduit  receiving  water  from  any  such  works, 
may  in  writing  agree  among  themselves  for  the  rotation 
of  the  water  to  which  they  are  severally  entitled,  and 
the  delivery  thereof  upon  particular  days  to  particular 
consumers  during  such  seasons,  season,  or  part  of  sea- 
son, as  in  such  agreement  may  be  specified;  Provided, 
however^  That  the  rotation  of  the  water  to  which  the  sev- 
eral consumers,  parties  to  such  agreement,  may  be  en- 
titled, shall  not  be  conducted  in  such  manner  as  to 
diminish  the  supply  of  water  to  which  any  other  con- 
sumer under  such  ditch,  conduit  or  lateral  may  be 
entitled. 

SEC.  3.  The  proprietors  of  two  or  more  ditches,  con- 
duits, reservoirs  or  other  works,  taking  water  from  the 
same  stream  or  source  of  supply,  may,  by  consent  in 


I   Tin-    STATE      I'M 

writing  of  those  entitled  to  the  use  of  water  therefrom, 
agree  in  like  manner  for  the  rotation  of  the  whole  or 
any  part  of  the  water  lawfully  allotted  from  such  stream 
or  source  of  supply  to  such  ditches,  conduits  or  other 
works  in  such  way  and  manner,  and  for  such  time  as 
may  be  in  such  agreement  specified;  Provided,  however, 
That  the  rotation  of  the  water  to  which  the  several  con- 
sumers, parties  to  such  agreement,  are  entitled  shall  not 
be  conducted  in  such  manner  as  to  diminish  the  supply 
of  water  to  which  any  consumer  of  water  from  any  other 
ditch,  conduit  or  other  works  may  be  entitled. 

SEC.  4.  Whenever  any  agreement  shall  be  entered 
into  for  the  rotation  of  the  water  of  any  ditch,  conduit, 
reservoir  or  other  works,  or  any  lateral  of  such  ditch,  or 
conduit  or  any  part  of  such  water,  among  those  entitled 
to  the  use  of  such  water,  such  agi cement  or  one  part  or 
copy  thereof  shall  be  delivered  to  the  superintendent  of 
the  ditch,  conduit,  reservoir  or  lateral,  and  be  by  him 
carefully  preserved,  and  he  shall  cause  the  water  to 
which  the  parties  thereto  may  be  entitled  to  be  rotated 
and  distributed  conformably  to  the  said  agreement,  dur- 
ing the  time  mentioned  therein  for  the  continuance  in 
force  of  such  agreement. 

SEC.  5.  Every  agreement  entered  into  between  the 
proprietors  of  two  or  more  ditches,  conduits,  reservoirs 
or  other  works,  taking  water  from  the  same  stream  or 
source  of  supply,  for  the  rotation  of  the  waters  thereof, 
in  manner  as  hereinbefore  provided,  shall  be  delivered 
to  the  State  Engineer  for  his  approval,  and  the  Water 
Commissioner,  upon  the  approval  of  such  agreement  by 
the  State  Engineer  shall,  during  the  period  mentioned 
in  such  agreement,  rotate  and  distribute  the  waters  to 
which  the  proprietors  of  such  ditches,  conduits,  reser- 
voirs or  other  works  may  be  entitled,  conformably  to  the 
said  agreement.  The  State  Engineer  shall  not  approve 
or  allow  any  such  agreement  to  go  into  effect  if  it  shall 
seem  to  him  manifestly  injurious  to  the  proprietors  of 


"IliS  REPORT   OF  THE   COMMISSION 

other  ditches,  canals  or  works,  or  the  consumers  of 
water  therefrom,  and  he  may,  if  after  experiment  the 
execution  of  such  agreement  be  found  injurious  to  other 
persons,  retract?-  his  approval  thereof  and  prohibit  the 
further  rotation  of  the  waters  pursuant  to  such  agree- 
ment, or  prescribe  conditions  to  the  further  observance 
of  such  agreement. 

SEC.  6.  The  proprietors  of  any  ditch,  conduit,  res- 
ervoir or  other  works  in  the  same  water  division  not 
party  to  such  agreement,  or  any  consumer  of  water 
therefrom,  shall  be  entitled  to  a  rehearing  of  the  matter 
before  the  State  Engineer,  at  any  time  within  two 
months  after  the  approval  of  such  agreement.  Reason- 
able notice  of  every  such  application  for  rehearing  shall 
be  given  to  the  proprietors  of  the  ditches,  conduits,  res- 
ervoirs and  other  works,  parties  to  such  agreement,  and 
the  State  Engineer,  may  require  like  notice  to  be  given 
to  all  others  in  interest  by  publication  as  may  be  by  him 
prescribed.  The  proprietors  of  any  ditch,  conduit,  res- 
ervoir or  other  works  in  the  same  Water  Division,  or 
any  consumer  of  water  or  person  entitled  to  the  use  of 
water  from  any  such  works,  shall  be  heard,  and  the 
State  Engineer  shall  make  such  order  in  the  premises  as 
right  and  justice  may  require ;  Provided,  however,  That 
during  the  pendancy  of  any  such  application  for  rehear- 
ing the  Water  Commissioner  shall  cause  the  waters  al- 
lotted to  the  ditches,  conduits,  reservoirs  or  other  works, 
the  proprietors  whereof  are  parties  to  such  agreement, 
to  be  distributed  and  rotated  conformably  to  such  agree- 
ment. Nothing  herein  contained  shall  be  so  construed 
as  to  prohibit  any  person  from  applying  to  the  District 
Court  whereunto  by  this  Act  is  committed  jurisdiction 
for  the  adjudication  of  the  rights  and  priorities  of  the 
appropriators  of  water  in  such  Water  Division,  for  relief 
against  such  agreement,  or  to  prevent  the  execution 
thereof. 


CONCERNING   Till-:    \VATKRS    <  >!•    Tin     STATK        I  <;<» 

SKC.  /.  No  agreement  for  the-  rotation  of  water 
shall  in  any  manner  impair  or  affect  the  rights  of  any 
prior  incnmbrancer  of  lands  theretofore  customarily  irri- 
gated by  any  part  of  the  waters  mentioned  in  such 
agreement,  he  not  being  a  party  to  such  agreement; 
nor  shall  such  agreement,  or  the  rotation  of  the  waters 
pursuant  thereto,  in  any  manner  affect  or  impair  the 
rights  or  the  priority  of  right  of  the  parties  thereto,  or 
the  persons  using  or  entitled  to  use  the  waters  referred 
to  in  such  agreement,  or  any  of  them  as  against  other 
persons. 

SEC.  8.  Whenever  any  such  agreement  for  the  rota- 
tion of  water,  either  between  or  among  several  ditches, 
conduits,  reservoirs  or  other  works,  or  among  those 
•entitled  to  the  use  of  the  waters  of  any  ditch,  conduit, 
reservoir  or  other  works,  or  any  lateral  therefrom  or  any 
part  of  such  water,  shall  be  for  a  space  exceeding 
one  season,  the  same  shall  be  recorded  in  the  office  of 
the  Recorder  of  the  county  wherein  is  situate  the  head- 
gate  of  such  ditch  or  conduit  or  wherein  is  situate  such 
reservoir,  or  the  head  of  the  lateral. 


ARTICLE   XII. 

OF   SUBTKRRANEAN   WATERS   AND  ARTESIAN   WEU,S. 

SECTION  i.  Waters  flowing  in  well  defined  subter- 
ranean channels  and  courses  shall  be  subject  to  appro- 
priation with  the  same  effect  as  the  water  of  superficial 
channels,  and  no  person  shall  be  allowed  by  drains, 
ditches,  subterranean  galleries  or  other  like  works,  to 
collect  and  divert  percolating  waters  manifestly  supply- 
Ing  such  subterranean  channel,  to  the  prejudice  of  any 
prior  appropriator  thereof;  Provided,  howsoever,  That 
nothing  in  this  section  contained  shall  be  so  construed 
.as  to  render  any  person  liable  in  damages  for  the  diver- 
sion or  obstruction  of  the  flow  of  subterranean  waters 
by  lawfully  excavating  for  cellars,  or  for  mining,  quar- 


170  REPORT   OF  THE  COMMISSION 

rying  or  carrying  on  like  works  on  his  own  lands,  nor 
for  excavating  drains  for  draining  and  improving  his 
own  lands,  nor  so  as  to  prohibit  the  proprietor  of  any 
lands  from  sinking  wells  therein,  and  thereby  collecting 
the  waters  percolating  through  such  lands  and  by  means 
of  pumps,  buckets  and  other  appliances,  withdrawing 
the  same  for  beneficial  uses. 

SEC.  2.  No  person  shall  be  permitted  to  take  or 
appropriate  the  waters  of  any  subterranean  channel 
which  natually  discharge  into  any  superficial  stream,  to 
the  prejudice  of  any  prior  appropriator  of  the  water  of 
such  superficial  channel. 

SEC.  3.  Any  person  sinking  or  boring  for  an  arte- 
sian well  shall  cause  to  be  kept  thereat  a  record  of  the 
work,  setting  forth  the  name  and  post-office  address  of 
the  proprietor  of  such  well,  or  the  person  causing  the 
same  to  be  sunk  or  bored,  the  name  of  the  contractor 
therefor,  and  the  name  of  the  person  actually  in  charge 
of  the  work;  the  particular  location  therof,  specifying,  if 
upon  surveyed  lands,  the  particular  forty  acres  and  the 
part  thereof  whereon  the  same  is  situated;  if  in  any  city 
or  town  the  particular  lot  or  block  or  other  subdivision 
upon  which,  or  nearest  to  which,  the  same  is  situate;  or 
if  on  unsurveyed  lands  the  location  thereof  by  reference 
to  permanent  natural  monuments  so  as  to  identify  the 
same  with  reasonable  certainty;  the  date  of  commence- 
ment of  work  in  sinking  or  boring  such  well  (which 
may  be  the  commencement  of  the  work  of  placing 
machinery  therefor),  all  suspensions  of  the  work,  and 
the  duration  and  cause  of  such  suspension,  the  time  of 
completion  of  the  work  or  final  cessation  thereof;  the 
different  strata  passed  through  and  the  depth  at  which 
each  thereof  shall  be  reached,  and  passed,  as  near  as 
may  be,  showing  also  each  flow  of  water  obtained,  and 
each  vein  of  water  or  water  bearing  stratum  passed 
through,  and  the  depth  thereof  from  the  surface,  number- 
ing each  such  flow  or  vein  of  water  consecutively  from 


R.NING    rni;.   WATERS   or   Tin-    STATE,      171 

the  surface,  and  the  height  to  which,  or  the  distance 
from  (lie  surface,  the  water  rises  in  such  well  after  pene- 
trating each  separate  flow  or  vein  of  water;  and  at  the 
completion  of  the  well  or  at  the  cessation  of  work 
thereon,  he  shall,  without  first  closing  or  shutting1  off  the 
flow  therefrom,  cause  to  be  ascertained  the  flow  thereof, 
if  a  flowing  well,  in  cubic  feet  per  day  of  twenty-four 
hours;  and  within  a  period  of  thirty  days  next  after 
completion  of  such  well  or  the  cessation  of  work  thereon, 
the  proprietor  thereof  shall  make  or  cause  to  be  made 
and  filed  in  the  office  of  the  State  Engineer,  and  in  the 
office  of  the  County  Clerk  and  Recorder  of  the  county 
wherein  the  said  well  is  situate,  a  statement  or  certificate 
verified  by  his  affidavit  or  the  affidavit  of  the  person  in 
in  charge  of  the  work,  setting  forth  all  the  matters 
aforesaid,  the  particular  vein  or  flow  of  water  claimed 
to  be  appropriated  by  means  of  said  well,  and  the  total 
amount  of  water  so  claimed  to  be  appropriated,  in  cubic 
feet  per  day  of  twenty-four  hours,  if  such  well  be  a 
flowing  well,  (otherwise  the  distance  from  the  surface  at 
which  the  water  customarily  stands),  what  part  or  parts 
of  such  well  is  or  are  cased,  and  the  interior  diameter  or 
diameters  of  such  casing  or  casings. 

SEC.  4.  Every  person  who  is  the  proprietor  of,  or 
entitled  to  the  waters  of  any  artesian  Jwell  heretofore 
sunk  or  bored,  shall,  within  ninety  days  after  this  act 
takes  effect,  make  and  cause  to  be  filed  in  said  offices  a 
like  statement  setting  forth  all  the  foregoing  matters  so 
far  as  within  his  knowledge,  and  according  to  the  best 
of  his  knowledge,  information  and  belief. 

SEC.  5.  The  State  Engineer  shall  prepare  and  trans- 
mit to  the  County  Clerk  of  each  of  the  counties,  printed 
blanks  for  such  statement,  and  may  require  to  be 
inserted  therein  information  touching  any  other  matter 
which  may  seem  to  him  necessary  to  be  known  in  order 
to  the  proper  regulation  of  the  subterranean  waters  of 
the  State.  The  State  Engineer  and  the  County  Clerk 


17*2  REPORT   OF  THE   COMMISSION 

shall  deliver  copies  of  such  blanks,  in  reasonable  num- 
ber, to  whomsoever  may  apply  therefor,  and  every  such 
statement  filed  as  required  by  this  article  shall  |be  made 
upon  one  of  such  blanks  or  according  to  the  form  pre- 
scribed thereby,  with  the  necessary  changes. 

SEC.  6.  Every  person  sinking  or  boring  for  an  ar- 
tesian well,  shall,  before  filing  the  statement  required 
hereby,  cause  to  be  placed  in  such  well  a  proper  and 
sufficient  casing  of  strength  sufficient  and  so  arranged 
and  placed  as  to  prevent  the  caving  in  of  strata  of  clay, 
sand  or  other  unconsolidated  matter  carrying  water,  not 
appropriated  or  claimed  by  the  proprietor  of  such  well, 
and  shall  so  case  such  well  as  to  prevent  the  escape  of 
the  waters  thereof  into  such  strata,  and  shall  cause  the 
same  to  be  furnished  with  such  appliances  at  or  near  to 
the  surface,  as  will  readily  and  effectively  arrest  and 
prevent  the  flow  of  water  from  such  well. 

SEC.  7.  Every  person  complying  with  the  provisions 
of  this  article  and  applying  the  waters  obtained  by 
means  of  such  artesian  well  to  beneficial  uses,  shall  be 
deemed  to  have  appropriated  such  waters  to  the  extent 
to  which  the  same  shall  be  so  applied  within  a  reason- 
able time  after  the  commencement  of  the  works,  and 
such  appropriation  shall  have  effect  as  of  the  day  of 
commencement  of  such  work,  provided  the  same  is 
prosecuted  with  reasonable  diligence — otherwise  from  the 
time  of  the  application  of  the  waters  thereof  to  beneficial 
uses. 

SEC.  8.  No  person  controlling  an  artesian  well  shall 
suffer  or  permit  the  waters  thereof  to  flow  to  waste,  un- 
less, and  so  far  as  reasonably  necessary,  to  prevent  the 
obstruction  thereof,  or  to  flow  or  be  taken  therefrom  save 
for  beneficial  uses;  Provided,  This  shall  not  be  so  con- 
strued as  to  prevent  the  reasonable  use  of  such  water  for 
the  necessary  irrigation  of  trees  standing  along  or  upon 
any  street,  road  or  highway,  or  for  ornamental  ponds  or 
fountains  or  the  propagation  of  fish. 


frr 


CONCERNING  Tin:   \VA  17;; 

SEC.  9.  Anv  Water  Commissioner  or  his  assistant, 
the  County  Commissioners,  Road  Overseers  and  Alder- 
men, or  other  City  Officers  within  their  respective  coun- 
ties, districts,  cities  and  towns,  upon  complaint  of  any 
person  that  the  proprietor  of  any  artesian  well,  or  person 
controlling  the  same,  is  wont  to  suffer  the  waters  thereof 
to  unnecessarily  run  to  waste  therefrom,  or  hath  in  any 
respect  violated  this  act,  may  at  anylreasonable  hour  of 
the  day  or  night,  enter  upon  any  premises  where  such 
well  is  situated,  for  inspecting  the  same,  and  for  ascer- 
taining whether  there  is  sufficient  cause  for  such  com- 
plaint, and  in  order  to  institute,  or  cause  to  be  instituted, 
criminal  prosecutions  for  any  violation  of  this  act.  And 
every  person  sinking  or  boring  for  an  artesian  well  upon 
his  own  land,  or  suffering  others  so  to  do,  shall  be 
deemed  in  law  to  expressly  license  such  entry  of  the 
officers  aforenamed,  or  any  of  them,  for  the  purpose  of 
such  inspection  and  examination. 

SEC.  10.  If  any  person  in  charge  of  the  work  of 
sinking  or  boring  an  artesian  well  shall  fail,  neglect  or 
refuse  to  keep  a  record  thereof,  as  required  by  this 
article,  or  shall  fail,  refuse  or  neglect  to  set  forth  therein  y 
as  nearly  as  may  be,  any  of  the  matters  or  things  hereby 
required  to  be  set  down  in  such  record,  or  being  the  pro- 
prietor of  such  well  hereafter  sunk  or  bored,  or  proprie- 
tor of,  or  entitled  to  the  waters  of  any  such  well  heretofore 
sunk  or  bored,  shall  fail  or  refuse  to  make  and  record  the 
certificate  required  by  this  article,  or  shall  willfully  and 
knowingly  insert  in  such  record,  or  in  such  certificate,  any- 
false  statement  touching  any  such  matter,  or  shall  cause 
or  procure,  or  knowingly  permit,  suffer  or  connive  at  such 
omission  or  false  statement,  or  being  the  proprietor  of,  or 
controlling  any  artesian  well,  shall  suffer  the  same  to  flow 
without  causing  it  to  be  furnished  with  such  appliances 
as  hereby  required,  for  arresting  and  preventing  the  flow 
of  water  therefrom,  or  who,  being  the  proprietor  of,  or 
controlling  such  well,  shall  knowingly  permit  the  water 


1  74  REPORT   OF   THE   COMMISSION 

thereof  to  flow  to  waste  unnecessarily  and  to  the  injury 
of  others,  or  being  in  possession  of,  or  controlling  the 
premises  where  such  well  is  situated,  shall  wilfully  pre- 
vent any  Water  Commissioner,  Assistant  Water  Com- 
missioner, County  Commissioner,  Road  Overseer,  Alder- 
man, or  other  city  officer  entitled  by  this  act  to  visit  and 
inspect  the  same  from  so  doing,  shall  be  deemed  guilty 
of  a  misdemeanor,  and  upon  conviction  thereof,  shall  be 
punished  by  a  fine  not  exceeding  one  hundred  dollars  or 
imprisonment  in  the  county  jail  not  exceeding  three 
months,  or  by  both  such  fine  and  imprisonment  in  the 
discretion  of  the  Court  wherein  conviction  is  had;  and 
any  person  guilty  of  willful,  false  swearing  to  any  such 
statement  as  hereby  required,  shall  be  deemed  guilty  of 
perjury  and  punished  accordingly. 


ARTICLE  XIII. 

OF  UNLAWFUL  INTERFERENCE  WITH  AND  MALICIOUS  INJURIES  TO 
WORKS  FOR  THE  DIVERSION,  CONVEYANCE  OR  STORAGE  OF 
WATER. 

SECTION  i.  If  any  person  shall  unlawfully  raise  the 
head-gate  of  any  ditch,  conduit  or  reservoir  for  the  diver- 
sion, conveyance,  retention  or  storage  of  water  for 
domestic,  agricultural,  or  other  uses  whatsoever,  after 
the  same  hath  been  set  and  placed  by  or  pursuant  to  the 
order  of  the  Water  Commissioner,  Superintendent  of 
Irrigation  or  State  Engineer;  or  shall  unlawfully  raise 
the  gate  of  any  outlet,  lateral  or  sub-lateral  whereby 
such  person  is  himself  supplied  with  water,  after  the 
same  shall  have  been  lawfully  set  or  placed  by  the  Super- 
intendent of  such  ditch,  conduit,  reservoir,  lateral  or 
sub-lateral;  or  shall  close  or  lower  the  gate  whereby  any 
other  person  shall  be  supplied  with  water  from  any  ditch, 
conduit,  reservoir,  lateral  or  sub-lateral;  or  shall  by  any 
way  or  means  whatsoever  willfully  and  unlawfully  pre- 
vent any  other  person  or  persons  from  receiving  the 
supply  of  water  to  which  he  or  they  may  be  lawfully 


><;  THK  WATT.KS  ui-  TIIK  STATI-       I  7:"» 

entitled;  or  shall  willfully  and  maliciously  cut  or  break 
down  the  head-gate  of  any  such  ditch,  conduit  or  reservoir, 
or  the  gate  of  any  feeder  or  lateral  thereof;  or  shall  will- 
fully cut,  excavate,  throw  down  or  open  the  embank- 
ment, side  or  other  part  of  any  such  works,  being  the 
property  of  another,  or  in  which  any  other  person  or 
persons  may  be  joint  owners  with  the  person  offending, 
or  which  may  be  in  the  lawful  possession  of  any  other 
person  or  persons,  with  intent  maliciously  to  injure  any 
person,  association  or  corporation,  or  for  his,  her  or  their 
own  gain,  or  with  intent  to  unlawfully  take  or  cause  to 
run  or  pour  out  of  such  ditch,  conduit  or  reservoir, 
flume,  feeder  or  lateral,  any  water  for  his  or  their  own 
use,  profit,  benefit  or  advantage,  or  for  the  use,  profit, 
benefit  or  advantage  of  any  person  or  persons  not  enti- 
tled thereto,  and  to  the  injury  of  any  other  person  or 
persons,  association  or  corporation  lawfully  entitled  to 
use  such  water,  or  to  the  injury  of  the  proprietors  of 
such  ditch,  conduit,  reservoir,  flume,  feeder  or  lateral, 
or  other  person  interested  therein,  he,  she  or  they  so 
offending  shall  be  deemed  guilty  of  a  misdemeanor,  and 
on  conviction  thereof  shall  be  fined  in  any  sum  not  less 
than  five  dollars  nor  more  than  three  hundred  dollars, 
and  may  be  imprisoned  in  the  county  jail  not  exceeding 
ninety  days. 

SEC.  2.  Any  person  so  offending  after  conviction 
thereof  once  had,  shall  be  punished  by  fine  in  not  less 
than  twenty  dollars  and  not  exceeding  one  thousand  dol- 
lars, or  by  imprisonment  in  the  penetentiary  for  not 
exceeding  one  year,  in  the  discretion  of  the  Court 
wherin  such  conviction  shall  be  had. 

SEC.  3.  If  it  shall  appear  that  upon  two  or  more 
occasions  within  the  same  period  of  thirty  days  or  less, 
water  to  the  carriage,  use  or  enjoyment  whereof 
any  person  or  corporation  was  entitled  for  any  purpose, 
was  diverted  or  flowed,  without  consent  of  such  person 
or  corporation  into  the  works  of  any  other  carrier,  or  to 


I  ./if,  : 


176  REPORT   OF  THE   COMMISSION 

the  field,  meadow,  mine,  mill,  manufactory  or  other 
works,  or  the  habitation  or  premises,  of  any  person  or 
corporation  not  entitled  thereto,  this  shall  be  deemed 
and  taken  as  prima  facie  evidence  that  any  improper 
diversion  thereof  afterwards  during  the  same  calendar 
year  was  caused  or  procured  by  the  carrier  into  whose 
works  or  the  person  to  whose  field,  meadow,  mine,  mill, 
manufactory,  works,  habitation  or  premises  such  waters 
were  so  improperly  diverted  or  flowed. 

SEC.  4.  Nothing  in  this  Article  contained  shall  be 
construed  to  repeal  any  provision  of  the  criminal  code 
or  other  statute  heretofore  enacted. 


ARTICLE   XIV. 

OF   THE  DRAINAGE   OF  LANDS. 

SECTION  i.  The  proprietor  of  any  lands  which  have 
become  saturated  by  seepage  waters  flowing  out  of  any 
ditch,  conduit  or  reservoir,  shall  be  entitled  to  cut  and  open 
drains  and  trenches  or  lay  pipes  or  conduits  for  draining 
such  lands  and  withdrawing  the  water  therefrom  and 
conveying  the  same  into  any  natural  stream  or  arroya; 
or  may  at  his  election  convey  such  waters  to  other  lands 
or  places  whatsoever  and  apply  the  same  to  domestic, 
agricultural,  manufacturing,  or  other  purposes,  in  his 
pleasure. 

SEC.  2.  In  order  to  cut  such  drains  and  trenches,  or 
to  lay  such  pipes  and  conduits,  such  proprietor  shall  be 
entitled  to  pass  with  the  same  over  the  intervening 
lands  of  others,  if  necessary.  And  in  case  of  being 
unable  to  agree  with  the  proprietors  of  such  interven- 
ing lands  touching  the  compensation  in  that  behalf 
payable,  or  in  case  of  the  nonage  or  other  disability,  or 
absence  of  such  proprietors,  or  any  of  them,  or  that 
such  proprietors  or  any  of  them  cannot  be  found,  may 
cause  such  damages  and  compensation  to  be  ascertained 


CONCERNING  Tin:  WATI-KS  Ol  177 

in    the   manner   prescribed    by  the    laws   at   the  tini- 
force  regulating  the  exercise  of   the  power  of  eminent 
domain. 

SKC.  3.  Every  proprietor  of  lands  collecting  waters 
by  drainage  thereof  shall  in  like  manner  be  entitled  to 
have  all  such  waters  carried  in  any  ditch,  conduit  or 
other  works  of  any  other  proprietor  to  the  places  where 
the  same  are  proposed  to  be  used,  and  may  cause  the 
works  of  such  other  proprietor  to  be  enlarged  for  the 
purpose,  if  necessary,  as  provided  in  the  third  Article. 


ARTICLE    XV. 

OF    THE      INCORPORATION     OF     WATER     DIVISIONS    AND     WATER 
DISTRICTS. 

SECTION  i.  Whenever  not  less  than  thirty  qualified 
electors  residing  within  the  limits  of  any  Water  District, 
shall  present  to  the  Governor  a  petition,  praying  that  an 
election  be  ordered  to  determine  the  question  whether 
such  Water  District  shall  be  incorporated,  the  Governor 
shall  appoint  five  qualified  electors,  inhabitants  of  the 
said  District,  Commissioners,  to  hold  an  election  of  the 
qualified  electors  residing  within  the  limits  of  such 
Water  District,  and  shall  fix  a  day,  hour  and  place  at 
which  said  Commissioners  shall  first  convene  for  the 
purpose;  Provided,  That  no  such  election  shall  be  held 
oftener  than  once  in  any  period  of  three  years. 

SEC.  2.  The  Secretary  of  State  shall  cause  a  notice 
of  the  appointment  of  such  Commissioners,  and  of  the 
clay,  hour  and  place  appointed  for  their  meeting,  to  be 
certified  to  them  severally  under  the  seal  of  his  office; 
and  the  said  Commissioners  shall  assemble  at  the  place 
and  at  the  day  and  hour  mentioned  in  such  appoint- 
ment, or  as  soon  thereafter  as  may  be,  and  appoint  one 
of  their  number  President,  and  one  of  their  number 
Clerk  of  the  Commission,  and  shall  also  by  resolution 

23 


178  'REPORT   OF  THE   COMMISSION 

fix  and  appoint  a  place  for  their  future  meetings,  and  to 
which  the  returns  of  such  election  shall  be  transmitted. 

SEC.  3.  The  majority  of  such  Commission,  at  any 
time  duly  assembled,  may  exercise  the  powers  of  the  said 
Commission,  and  a  less  number  may  adjourn  from  day 
to  day,  or  for  any  longer  period.  Meetings  of  said  Com- 
mission may  be  lawfully  called  by  the  President,  or  any 
two  members  thereof,  and  notice  thereof  may  be  suf- 
ficiently served  by  depositing  the  same  in  the  post-office, 
properly  addressed,  forty-eight  hours  prior  to  the  hour 
appointed  for  such  meeting. 

SEC.  4.  As  soon  as  may  be  after  their  appointment 
the  said  Commission  shall  fix  the  several  places  in  each 
precinct  contained  within  the  said  Water  District  (the 
limits  whereof  shall  be  the  same  as  those  of  the  precincts 
into  which  the  several  counties,  wholly  or  in  part,  in- 
cluded within  the  limits  of  the  said  Water  District,  shall 
have  been  subdivided  for  the  purpose  of  the  general 
election  held  in  such  counties  next  prior  thereto)  at 
which  the  electors  shall  assemble  for  the  purpose  of 
said  election,  and  fix  the  day  of  such  election,  and 
appoint  three  capable  and  discreet  persons,  electors  of 
such  precincts  respectively,  to  act  as  judges  of  said 
election  in  the  said  precincts  respectively,  and  shall 
forthwith  and  at  least  thirty  days  prior  to  the  day  ap- 
pointed for  such  election,  cause  a  notice  of  such  election 
and  that  the  purpose  thereof  will  be  to  determine 
whether  said  Water  District  shall  become  incorporated, 
and  of  the  several  places  in  each  precinct  at  which  the 
electors  shall  assemble,  to  be  published  in  at  least  one 
newspaper  in  each  county,  wholly  or  in  part  included 
within  the  limits  of  said  Water  District,  wherein  such 
newspaper  is  published,  and  in  case  in  any  such  county 
there  be  no  -newspaper  published,  shall  cause  such  no- 
tices to  be  conspicuously  posted  in  at  least  three  different 
places  in  that  part  of  said  county  contained  within  the 
limits  of  said  Water  District. 


CONCERNING    Till-    WATERS  OF  THE  STATi;        1  7(.» 

SKC.  5.  The  Clerk  of  the  Commission  shall  keep  a 
fair  record  in  a  well  bound  book,  by  him  to  be  provided 
for  the  purpose,  of  all  the  orders  and  proceedings  of  said 
Commission,  and  shall  certify  to  each  of  the  Judges  of 
Election,  appointed  by  the  Commission  in  each  precinct, 
the  fact  of  their  appointment. 

SEC.  6.  Within  three  days  immediately  [preceding 
the  day  appointed  for  such  election  the  County  Clerk  of 
each  county,  wholly  or  in  part  included  within  the  said 
Water  District,  shall  deliver  to  one  of  the  Judges  of 
such  election,  appointed  pursuant  to  this  Article,  one 
of  the  ballot  boxes  provided  by  the  county  for  the  gen- 
eral election,  and  the  Judges  of  such  Election  shall, 
within  three  days  after  the  close  of  such  election,  return 
the  same  to  such  County  Clerk. 

SEC.  7.  If  any  person  appointed  to  act  as  Judge  of 
such  election  in  any  precinct,  shall  fail  to  attend  at  the 
place  appointed  therefor  by  the  hour  appointed  for  the 
opening  of  the  polls,  or  shall  neglect  or  refuse  to  be 
sworn  or  affirmed,  to  act  in  such  capacity,  his  place  shall 
be.filled  by  the  votes  of  such  [qualified  electors  of  the 
precinct  as  maj'  then  be  present.  And  every  person  so 
elected  to  fill  such  vacancy  or  vacancies  shall  exercise 
the  same  powers  as  if  appointed  by  the  Commission. 

SEC.  8.  When  three  Judges  so  appointed  shall  be 
duly  sworn  they  may  appoint  two  persons,  electors 
residing  within  the  precinct,  to  act  as  Clerks  of  the  elec- 
tion. 

SEC.  9.  Each  of  the  Judges  and  Clerks  of  Election 
shall  severally  take  an  oath  or  affirmation  in  the  same 
form  as  prescribed  in  the  statute  regulating  general  elec- 
tions. And  such  elections  shall,  in  each  precinct,  be 
proceeded  with  in  the  same  manner  in  respect  of  the 
receipt  of  the  ballots,  the  keeping  of  the  poll-lists,  the 
preservation  of  order,  the  challenge  of  voters,  the  trial 
of  such  challenge  and  all  other  matters  of  detail,  as  pre- 


180  REPORT   OF  THE   COMMISSION 

scribed  in  the  statute  regulating  general  elections;  and 
the  powers  of  the  Judges  shall  be  the  same  as  prescribed 
for  the  Judges  of  such  elections. 

SEC.  10.  At  every  such  election  the  polls  shall  be 
opened  at  seven  o'clock  in  the  morning  and  continue 
open  until  seven  o'clock  in  the  evening  of  the  same  day. 
And  proclamation  of  the  opening  of  the  polls  and  of  the 
closing  thereof  shall  be  made  in  the  same  manner  and 
at  the  same  time  as  prescribed  in  the  general  law. 

SEC.  ii.  As  soon  as  the  polls  at  such  election  in  any 
precinct,  shall  have  closed,  the  judges  of  the  election 
shall  proceed  to  count  and  canvass  the  votes  in  the  same 
manner  as  prescribed  in  the  law  governing  the  general 
election;  and  after  the  votes  shall  have  been  read  and 
counted  the  judges  shall  make  a  certificate  under  their 
hands,  which  shall,  be  attested  by  the  Clerks  of  the 
Election  substantially  in  the  form  following,  that  is  to 
say: 

"At  an  election  held  at  the house  of 

in Precinct  or  Ward, 

in  the  county  of ,  and  State  of  Colo- 
rado, on  the dav  of A.  D. 

18 ,  upon  the  question  whether  Water  District  No. 

,  in  the  State  of  Colorado,  shall  become  incorpora- 
ted,  votes  were  cast  'in  favor  of  incorporation,' 

and '. votes  'against  incorporation.' 

Certified  by  us  this day  day  of , 

A.  D.  i8~ 


Attest:  Judges  of  Election. 


Clerks  of  Election. ' ' 

And  the  said  certificate  with  one  of  the  lists  of  voters 
kept  by  the  Clerks  of  Election  and  one  of  the  tally  sheets 
shall  then  be  enclosed,  sealed  up  under  cover,  directed 


I  f 


CONCERNING   TIIK    WATl'.l'  Is] 

to  the  Clerk  of  the  Commission  appointed  to  hold  such 
election,  and  the  package  thus  sealed  shall  be  sent  by 
registered  letter,  where  practicable,  otherwise,  by  one 
of 'the  Judges  or  Clerks  of  Election,  to  be  determined  by 
lot  if  they  cannot  agree  otherwise,  within  three  days 
after  the  closing  of  the  polls,  to  the  Clerk  of  the  Com- 
mission aforesaid.  The  ballots  and  the  other  poll-list 
and  tally  sheet  shall,  with  the  ballot-box,  be  returned 
to  the  office  of  the  County  Clerk  of  the  county  wherein 
such  precinct  is  situate. 

SEC.  12.  At  every  such  election  the  ballot  shall  be 
inscribed,  "For  incorporation,"  or  u Against  incor- 
poration." 

SEC.  13.  On  the  tenth  day  after  the  election  the 
Commission  shall  assemble  at  the  place  appointed  for 
their  meeting,  as  provided  in  the  second  section,  and 
shall  canvass  the  returns  thereof  and  make  an  abstract 
thereof,  setting  down  therein  the  number  of  votes  for 
and  against  incorporation,  cast  in  each  precinct,  which 
shall  be  entered  of  record  in  the  Book  of  Records  kept 
by  the  Clerk,  in*  the  form  following  as  near  as  may  be  : 

"On  this day  of A.  D.  18 

the  Commissioners  appointed  by  the  Governor  of  the 
State  of  Colorado  to  hold  an  election  in  Water  District 

No of  the   State   of    Colorado,    to   determine    the 

question  whether  such  Water  District  shall  become  in- 
corporated, assembled  at ,  in  the  county  of 

in  the  said  Water  District,  to  canvass  the 

votes  cast  at  the  election  held  for  the  purpose  on  the  day 

of A.  D.  18 ,   and  upon  such  canvass  of  the 

votes  as  returned  to  us  by  the  Judges  of  Election  in  the 
several  precincts,  it  appeared  that  in  each  of  the  precincts 
wherein  an  election  was  held  the  following  number  of 

votes  were  cast,  that  is  to  say:     ( In  precinct  of 

county, votes    for    incorporation,    and    votes 

against  incorporation,'  "  and  so  following  as  to  each 
precinct. 

And  thereupon  having  completed  such  canvass  of 
the  votes,  and  having  ascertained  the  total  number 


182  REPORT   OF   THE   COMMISSION 

of  votes  cast  for  and  against  the  proposed  incorpora- 
tion, and  ascertained  the  result,  and  made  certificate 
thereof  as  aforesaid,  the  said  Commission  shall  attest  the 
same  with  their  signatures  in  such  record,  and  shall 
cause  to  be  made  and  shall  certify  under  their  hands,  a 
copy  thereof,  and  transmit  the  same  forthwith  by  mail 
to  the  Secretary  of  State.  The  original  of  the  returns 
of  the  election  received  from  the  Judges  of  Election  in 
each  precinct  shall  be  carefully  preserved  by  the  Clerk 
of  the  Commission,  and  upon  the  appointment  and  or- 
ganization of  the  Board  of  Directors  of  the  District  (in 
case  such  election  shall  result  in  favor  of  incorporation) 
shall  be  by  him  delivered  to  the  Clerk  of  such  Board  of 
Directors,  together  with  the  record  of  the  proceedings 
of  the  Commission  kept  in  pursuance  hereof. 

SEC.  14.  If  by  such  canvass  of  the  votes  cast  at 
such  election,  it  shall  appear  that  the  majority  of  elect- 
ors voting  thereat  voted  in  favor  of  incorporation,  the 
Governor  shall,  within  ten  days  after  the  receipt  of  the 
certificate  of  the  Commission  as  to  the  canvass  of  the 
election,  and  the  result  thereof,  as  hereby  required, 
issue  his  proclamation,  setting  forth  the  result  of  such 
election  and  that  thereby  the  inhabitants  of  the  said 
Water  District,  naming  the  same,  became  and  are  a 
corporation  pursuant  to  this  act,  and  appointing  and 
naming  five  qualified  electors  of  the  said  Water  District 
to  be  and  serve  as  Directors  for  the  said  District  until 
the  next  election  to  be  had  therein. 

SEC.  15.  The  Secretary  of  State  shall  cause  the 
said  proclamation  to  be  published  in  at  least  one  news- 
paper in  each  county,  wholly  or  in  part  included  within 
the  said  Water  District,  and  shall,  under  his  seal  of 
office,  certify  a  copy  thereof  to  the  persons  named  as 
Directors  of  the  said  Water  District. 

SEC.  16.  Each  of  the  said  Commissioners  shall 
receive  the  sum  of  five  dollars  per  day  for  each  day  dur- 
ing which  he  shall  be  employed  in  the  discharge  of  the 


CONCI-KNINc;    Till-     WATI-RS    <>I     Till-    STATE,        L83 

duties  of  his  office.  And  each  of  the  Judges  and  Ckrk> 
of  Election  shall  receive  the  same  fees  as  allowed  to 
the  Judges  and  Clerks  of  the  General  Elections.  Such 
compensation  of  the  members  of  the  Commission  and 
of  the  Judges  and  Clerks  of  Election  shall  be  ascer- 
tained and  certified  by  the  Commission  and  by  them 
apportioned  among  the  several  counties  wholly  or  in 
part  included  in  the  Water  District,  and  upon  their  cer- 
tificate thereof  and  their  apportionment  thereof,  certi- 
fied to  the  said  several  Boards  of  Commissioners,  the 
same  shall  be  paid  according  to  such  apportionment. 

SEC.  17.  Every  such  Water  District  incorporated  in 
pursuance  hereof  shall  be  a  body  politic  and  corporate 

by  the  name  of  "Water  District  No. ,  in  the  State 

of  Colorado,"  and  may  sue  and  be  sued,  plead  and  be 
impleaded  in  all  Courts  and  places  whatsoever,  and  may 
make  and  use  a  common  seal  and  alter  the  same  at 
pleasure. 

SEC.  1 8.  The  Board  of  Directors  of  every  such 
Water  District  shall  assemble  at  the  place  and  on  the 
day  and  hour  fixed  in  the  proclamation  of  the  Governor, 
or  as  soon  thereafter  as  may  be,  and  shall  organize  by 
appointing  one  of  their  number  to  be  President  of  the 
District,  and  one  of  their  number  to  be  Treasurer  of  the 
District,  and  one  of  their  number  or  some  other  qualified 
elector  of  said  Water  District  to  be  Clerk  of  the  District; 
and  as  soon  as  may  be  thereafter  shall  adopt  by-laws 
prescribing  the  places  and  times,  not  oftener  than  once 
in  each  calendar  month,  when  and  where  their  stated 
meetings  shall  be  held,  the  manner  of  calling  special 
meetings,  and  the  manner  and  time  of  serving  notices 
thereof. 

SEC.  19.  On  the  third  Monday  in  November  next 
succeeding  the  organization  of  such  district,  an  election 
shall  be  held  for  the  choice  of  a  Board  of  five  Directors 
to  succeed  those  first  appointed  by  the  Governor  as  here- 
inabove  provided.  Each  of  the  Directors  so  chosen 


1S4  REPORT  OF   THE   COMMISSION 

shall  be  a  qualified  elector  residing  within  the  limits  of 
the  said  Water  District. 

SEC.  20.  On  the  third  Monday  after  such  election 
the  said  Board  of  Directors  so  elected  shall  assemble  at 
the  place  theretofore  appointed  for  the  meetings  of  the 
Board,  and  having  severally  taken  and  subscribed  the 
oath  of  office  prescribed  by  the  Constitution,  and  having 
transmitted  the  same  to  the  Secretary  of  State  to  be  filed 
in  his  office,  shall  proceed  to  determine  by  lot  the  dura- 
tion of  the  term  of  office  of  each  of  them,  so  that  the 
term  of  office  of  one  of  said  Board  of  Directors  shall 
expire  in  each  year  following.  And  on  the  third  Monday 
of  November  of  each  year  thereafter  an  election  shall 
be  held  in  all  of  the  precincts  throughout  such  district 
to  fill  such  vacancy,  and  any  other  vacancy  then  exist- 
ing in  such  Board. 

SEC.  21.  Every  such  Board  of  Directors  shall  have 
power : 

First — To  adopt  by-laws,  not  inconsistent  with  this 
Act  or  any  other  law  of  the  State  of  Colorado,  for  en- 
forcing the  economical  use  of  water  and  preventing 
waste  thereof. 

Second — To  erect,  maintain  and  operate  telephone 
lines  or  other  means  of  speedy  communication  within 
such  Water  District  for  promoting  speed  and  facility  in 
communication  between  those  controlling  the  waters  of 
such  District  and  those  entitled  to  the  enjoyment  thereof, 
and  to  demand  and  receive  reasonable  rates  and  tolls  for 
the  use  of  such  telephone  lines  or  other  means  of  com- 
munication; Provided,  howsoever,  That  no  compensation 
shall  be  exacted  for  the  use  thereof  by  the  State  Engin- 
eer, Superintendent  of  Irrigation,  the  Water  Commis- 
sioner of  the  District  or  any  assistants  of  said  officers,  or 
either  of  them,  for  transmitting  any  message  relating  to 
their  official  duties. 


NCERNING   THE   \v  \n-:i<s  OP  Tin-   STA1 

Third—  To  construct  reservoirs  for  storing  nna]>! 
priated  water  of  the  natural  streams  of  such  Water  Dis- 
trict at  other  times  than  during  the  seasons  of  irrigation, 
or  when  the  same  shall  not  be  needed  for  direct  irriga- 
tion, for  use  in  such  Water  Districts  during  the  season 
of  irrigation. 

Fourth — To  construct  works  for  draining  marshy  or 
saturated  lands  and  collecting  waters  therefrom  and 
returning  the  same  to  the  natural  streams. 

Fifth — To  construct  works  for  improving  the  natural 
streams  within  such  Water  District,  confining  the  same 
to  their  channels  and  preventing  the  waste  of  the  waters 
thereof. 

Sixth — To  lease,  purchase  or  take,  in  pursuance  of  the 
Statutes  regulating  the  right  of  eminent  domain,  the 
lands  and  other  property  necessary  for  the  site  of  such 
reservoirs  or  for  the  line  and  stations  of  such  telephone 
lines  or  other  means  of  speedy  communication,  and  to 
sell  and  dispose  of  any  such  properties,  or  any  materials, 
tools  or  supplies  when  the  same  shall  be  no  longer 
needed. 

Seventh — To  prescribe,  enforce  and  collect  penalties, 
not  exceeding  a  fine  of  three  hundred  dollars  for  any  one 
offense,  from  all  persons  who  shall  violate  any  by-law 
made  by  such  Board  of  Directors  for  prohibiting  extrav- 
agance in  the  use  of  and  waste  of  water. 

Eighth — To  employ  and  discharge  such  servants  as 
may  be  necessary  for  the  purposes  aforesaid,  and  such 
policemen  as  may  be  necessary  for  enforcing  their  by- 
laws, to  prescribe  their  duties  and  powers  and  to  fix 
their  compensation. 

Ninth — To  levy  and  collect  in  each  year,  upon  all 
real  and  personal  property  within  such  Water  District, 

a  tax  not  exceeding mills  upon  each  dollar  of 

the  assessed  valuation  thereof,  for  use  in  the  purchase 
of  the  material  and  the  employment  of  the  servants  and 


186  REPORT  OF  THE   COMMISSION 

policemen  necessary  for  carrying-   out  the    purposes  of 
said  corporation. 

Tenth — To  prescribe  reasonable  and  necessary  by- 
laws, not  inconsistent  with  this  Act  or  the  laws  of  the 
State,  for  carrying  into  effect  the  powers  aforesaid  and 
regulating  the  exercise  thereof,  and  for  prescribing  the 
time,  manner  and  places  of  the  election  therein,  and  the 
rate  and  manner  of  assessment  and  collection  of  the  taxes 
to  be  levied  in  pursuance  hereof.  No  such  corporation 
shall  borrow  money  for  any  purpose  whatsoever;  nor 
save  for  necessary  expenses  of  elections,  the  compensa- 
tion of  the  Directors  and  other  officers  thereof,  as  herein 
prescribed,  and  for  the  reasonable  hire  of  necessary  ser- 
vants and  clerks,  and  of  the  Water  Police  employed  for 
enforcing  its  regulations,  contract  any  debt  whatsoever. 

SEC.  22.  Every  such  Board  of  Directors  shall  have 
power  at  any  stated  meeting,  by  a  majority  of  their 
number  then  present,  to  fill  vacancies  in  such  Board  of 
Directors  occasioned  by  death,  resignation  or  permanent 
removal  out  of  the  District.  Every  person  so  appointed 
to  fill  such  vacancy  shall  hold  his  office  only  until  the 
next  election  of  Directors  in  such  Water  District  and 
until  the  election  and  qualification  of  a  successor  to  the 
person  in  whose  stead  he  was  appointed. 

SEC.  23.  Any  Justice  of  the  Peace  within  the  said 
Water  District  shall  have  power  to  entertain  complaints 
for  the  violation  of  any  by-law  of  such  Water  District, 
and  to  give  judgment  for  the  penalty  prescribed  by  such 
by-law,  to  fix  the  amount  of  such  penalty  where  the 
same  be  discretionary,  and  to  issue  execution  for  the 
collection  thereof. 

SEC.  24.  Every  such  Board  of  Directors  may  pre- 
scribe that  any  fine  imposed  for  the  violation  of  any  by- 
law thereof,  may  be  enforced  by  imprisonment  of  the 
offender,  in  the  county  jail,  until  payment  thereof  or 
until  he  shall  be  otherwise  discharged,  according  to  law;. 


:  in-;  \V.\TI-:KS  •  >i;  Tin-   STATE.      1  ^7 

Provide- d^  however,  That  no  by-law  imposing  any  fim 
or  penalty  shall  be  of  effect  until  ten  days  after  tlu-  sunn- 
be  published  in  some  public  newspaper  within  such 
Water  District 

SEC.  25.  Any  by-law,  order  or  other  proceedings 
shall  be  sufficiently  proven  by  the  certificate  of  the 
Clerk  of  such  Board,  that  the  same  is  truly  copied  from 
the  record  thereof  in  his  office;  and  a  book  purporting 
to  be  published  by  authority  of  such  Board  of  Directors, 
and  purporting  to  contain  the  by-laws  or  other  orders 
and  proceedings  of  such  Board,  shall  be  deemed  and 
taken  as  evidence  in  all  courts  and  places. 

SEC.  26.  Upon  petition  of  not  less  than  thirty  qual- 
ified electors  residing  within  the  limits  of  each  Water 
District  in  any  Water  Division,  the  Governor  shall 
appoint  a  Commission  consisting  of  one  qualified  elector 
from  each  of  said  Water  Districts  to  hold  an  election  of 
the  qualified  electors  within  the  limits  of  such  Water 
Division  upon  the  question  whether  such  Water  Divis- 
ion shall  become  incorporated,  and  the  Commission  so 
appointed  shall  proceed  in  all  things  as  hereinbefore  pre- 
scribed touching  the  incorporation  of  the  Water  Districts; 
and  all  the  foregoing  regulations  touching  the  election 
and  manner  thereof,  the  power  of  the  Judges,  canvass 
of  the  ballots  and  other  proceedings  touching  said  elec- 
tion, the  returns  thereof  and  the  proclamation  of  the 
result,  shall  control  in  such  election;  and  the  compensa- 
tion of  the  Commissioners  appointed  to  hold  said  elec- 
tion, and  the  Judges  and  Clerks  thereof,  shall  be  the 
same,  and  shall  be  paid  in  the  same  manner  as  herinbe- 
fore  provided  touching  the  Water  Districts. 

SEC.  27.  Every  such  Water  Division  becoming- 
incorporated  pursuant  to  the  foregoing  section,  shall  be 
governed  by  a  Board  of  Directors,  and  the  same  officers, 
of  the  same  number  and  titles,  as  the  Water  Districts, 
who  shall  be  first  appointed  and  afterwards  elected,  and 
vacancies  in  the  number  of  which  Directors  shall  be 


1SS  REPORT   OF   THE   COMMISSION 

filled,  in  the  same  manner  as  hereinbefore  provided 
touching  the  Water  Districts;  said  Board  of  Directors 
shall  have  the  same  powers  as  herein  prescribed  for  the 
Board  of  Directors  of  Water  Districts,  and  the  by-laws 
thereof  may  be  enforced  in  the  same  manner.  Wherever 
in  any  case  there  are  persons  or  corporations  diverting  and 
using  in  the  lower  parts  of  such  Water  Division,  or  at  a  great 
distance  from  the  source  of  supply,  waters  of  the  natural 
streams,  or  any  such  streams  thereof,  and  who  are  entitled 
thereto  by  appropriations  prior  in  date  to  the  appropri- 
ators  of  waters  for  the  same  or  inferior  purpose  in  the 
upper  parts  of  the  streams,  or  many  such  appropriators, 
and  by  suffering  the  water  to  flow  to  such  lower  appro- 
priators, great  waste  is  occasioned,  such  Water  Division 
shall  have  power  to  agree  with  the  persons  and  corpora- 
tions, proprietors  of  works  diverting  such  waters  in  the 
lower  parts  of  the  Division,  and  the  several  persons 
entitled  to  the  use  of  such  waters,  that  such  persons  and 
corporations  yield  up,  assign  and  transfer  to  such  Water 
Division  their  priorities  of  date,  and  suffer  water  to  the 
amount  which  the  proprietors  of  such  ditches,  conduits 
or  other  works  in  the  lower  part  of  the  Division  are 
entitled  to  divert,  convey  or  store,  to  be  diverted,  con- 
veyed, stored  and  used  in  the  upper  parts  of  such  Water 
Division  nearer  the  sources  of  supply,  as  the  Board  of 
Directors  of  such  Water  Division  may  from  time  to  time 
direct,  and  that  the  persons  and  corporations  theretofore 
diverting,  carrying  or  storing  such  waters  in  the  lower 
parts  of  such  Water  Division  shall  be  entitled  to  divert, 
carry  and  store  the  same  amount  of  waters  as  of  a  junior 
priority. 

SEC.  28.  Every  such  Water  Division  may,  for  effect- 
ing such  purchase,  or  to  enable  it  to  carry  out  such 
agreement,  borrow  money  and  issue  its  bonds,  payable 
at  such  time  as  the  Board  of  Directors  may  by  resolu- 
tion prescribe,  and  bearing  interest  at  not  exceeding 
six  per  cent,  per  annum,  payable  semi-annually  at  such 


Till-:    \VATl-k-    OP    THB    9 

place  as  may  be  provided  in  such  bonds;  l>rovided,  li<>«- 
.  That  no  such  loan  shall  be  contracted  save  by  by-law 
irrepealable  until  the  indebtedness  shall  have  been  fully 
paid  or  discharged,  specifying  the  purposes  to  which 
each  particular  fund  so  to  be  borrowed  shall  be  applied, 
and  providing  for  the  levy  of  a  tax  not  exceeding 
twelve  mills  on  each  dollar  of  valuation  of  the 
taxable  property  within  such  Water  Division  sufficient 
to  pay  the  annual  interest  and  extinguish  the  principal  of 
said  loan  within  the  period  for  which  said  loan  is  con- 
tracted, which  shall  not  in  any  case  exceed  fifteen  years; 
and  such  tax  when  collected  shall  be  applied  only  to  the 
purposes  in  such  by-law  prescribed  until  the  indebted- 
ness be  fully  discharged;  and  no  such  indebtedness  shall 
be  contracted  exceeding  the  rate  specified  in  the  Sixth 
Section  of  the  Eleventh  Article  of  the  Constitution  of 
this  State;  Provided,  however,  That  no  such  agreement 
shall  be  entered  into  until  at  some  election  of  a  Director 
in  such  Water  Division,  or  an  election  called  for  the 
purpose  by  the  Board  of  Directors  of  such  Water  Divis- 
ion, two-thirds  of  the  electors  of  such  Water  Division 
who  have  in  the  year  preceeding  paid  a  property  tax  in 
some  one  of  the  counties  of  such  Water  Division,  shall 
vote  in  favor  thereof. 

SEC.  29.  The  Board  of  Directors  of  such  Water 
Division  may  enact  reasonable  by-laws  not  in  conflict 
with  this  act,  or  the  laws  of  the  State  regulating  the 
manner  of  submitting  the  question  of  such  purchase  to 
the  electors  of  such  Water  Division,  and  for  ascertaining 
and  certifying  the  result  ;  every  such  proposition  for 
such  agreement  touching  the  purchase  of  the  priority  of 
right  of  any  appropriator  shall  specify  and  set  down  the 
maximum  price  to  be  paid  for  each  ditch,  conduit,  res- 
ervoir or  other  works,  the  priority  in  respect  whereof  is 
proposed  to  be  obtained,  whether  a  loan  is  proposed  to 
be  made  therefor,  or  the  amount  raised  by  taxation,  the 
period  of  such  loan,  if  any,  and  the  rate  of  interest  to  be 
paid  thereon. 


REPORT   OF  THE   COMMISSION 

SEC.  30.  If  in  any  case  by  reason  of  the  absence, 
nonage  or  other  disqualification  of  the  proprietors  of  any 
such  works,  or  the  persons  entitled  to  the  use  and  en- 
joyment of  the  waters  diverted  thereby  in  the  lower 
parts  of  such  Water  Division,  or  the  refusal  of  them  or 
any  of  them  to  agree  in  that  behalf,  the  Directors  of 
such  Water  Division  be  not  able  to  agree  with  them 
touching  the  compensation  to  be  paid  in  that  behalf, 
they  may  cause  the  same  to  be  ascertained  in  the  man- 
ner prescribed  by  the  laws  then  in  force  regulating  the 
exercise  of  the  power  of  eminent  domain. 

SEC.  31.  Whenever  the  Board  of  Directors  of  any 
Water  Division  shall  propose  to  agree  with  the  proprie- 
tors of  any  ditch,  conduit  or  other  works  in  manner  as 
hereinbefore  provided,  they  shall  prepare  and  cause  to 
be  filed  in  the  office  of  the  State  Engineer  a  certificate 
of  their  intentions  in  that  behalf,  and  setting  forth  the 
name  of  the  ditch,  conduit  or  other  works,  the  priority 
of  right  in  respect  whereof  it  is  proposed  to  purchase, 
and  in  case  such  purchase  be  consummated,  either  by 
mutual  agreement  or  condemnation  in  pursuance  hereof, 
the  proprietors  of  such  ditch,  conduit  or  other  works 
shall  be  entitled  to  divert,  carry  or  store  and  use,  or 
deliver  to  others  for  use,  the  same  amount  of  water  as 
theretofore,  but  as  of  the  date  of  the  filing  of  such  cer- 
tificate by  the  Board  of -Directors  of  such  Water  Divis- 
ion; and  all  appropriations  made  in  the  mean  time  shall 
be  subject  to  the  rights  of  the  proprietors  of  such  ditches, 
conduits  or  other  works,  provided  such  purchase  be  con- 
summated within  two  years  after  the  filing  of  such 
certificate. 

SEC.  32.  The  Board  of  Directors  of  any  such  Water 
Division  incorporated  in  pursuance  hereof  having  pur- 
chased or  taken  in  pursuance  of  this  Article  the  right  of 
any  prior  appropriator  to  divert,  carry  and  use  any  waters 
as  of  prior  date,  shall  thereafter  at  all  times  have  control 
of  the  waters  so  obtained  and  the  right  formerly  enjoyed 


NCBRNING  TIII-;  w  A  TICKS  01-  THIC  STATI-:      I'.H 

by  such  prior  appropriator  in  respect  thereof,  and  shall 
from  time  to  time  distribute  and  dispose  thereof  to  the 
different  works  in  the  upper  parts  of  such  Water  Division 
nearer  to  the  sources  of  supply  as  may  seem  to  the  Board 
of  Directors  of  such  Water  Division  requisite,  fitting 
or  most  to  the  advantage  of  the  inhabitants  of  the  Water 
Division,  but  they  shall  not  lease  the  same  out  or  sell 
or  dispose  of  the  rights  so  acquired  in  respect  of  such 
waters. 

SEC.  33.  Whenever  thirty  qualified  voters  residing 
within  the  limits  of  any  Water  District  shall  request  the 
Board  of  Directors  of  such  Water  District  to  submit  to 
the  qualified  voters  thereof,  the  question  of  dissolving 
and  disincorporating  such  Water  District,  the  Board  of 
Directors  shall  cause  such  question  to  be  submitted  to 
the  qualified  electors  of  such  District  at  the  election  next 
held  therein  for  choosing  a  Director,  or  they  may  call 
a  special  election  for  the  purpose.  At  such  election  the 
votes  shall  be  received,  returned  and  canvassed  in  the 
manner  prescribed  by  the  by-laws  of  such  Water  District 
for  other  elections,  and  if  the  majority  be  in  favor  of 
disincorporation  the  Board  of  Directors  shall  make  a 
certificate  of  the  result  of  such  election  and  cause  the 
same  to  be  recorded  in  the  records  of  such  Water  Dis- 
trict and  certify  a  copy  thereof  to  the  Secretary  of  State 
and  to  the  State  Engineer,  and  such  Water  District  shall 
thereupon  become  forthwith  disincorporated,  and  all  the 
records  of  such  Water  District  shall  be  forthwith  filed 
by  the  Clerk  of  the  Board  of  Directors  thereof  in  the 
office  of  the  State  Engineer.  No  election  upon  the 
question  of  disincorporation  shall  be  had  oftener  than 
once  in  three  years. 

SEC.  34.  Upon  petition  of  not  less  than  thirty  of 
the  qualified  electors  in  each  Water  District  of  any  Water 
Division  incorporated  in  pursuance  hereof,  praying  the 
Board  of  Directors  of  such  Water  Division  to  submit 
the  question  to  the  qualified  electors,  such  Water  Divis- 


HH  REPORT    OF  THE   COMMISSION 

ion  may  become  disincorporated  in  the  same  manner 
heretofore  prescribed  touching  the  Water  Districts. 
Such  election  shall  not  be  called  or  held  oftener  than 
once  in  three  years. 

SEC.  35.  In  case  of  such  disincorporation  of  any 
Water  District  or  Water  Division  the  Board  of  Directors 
thereof  then  incumbent  shall  continue  in  office  so  long 
as  may  be  necessary  for  collecting  and  disposing  of  the 
properties  pertaining  to  such  corporation  a,nd  discharg- 
ing the  debts  thereof,  and  no  longer,  and  shall  be 
trustees  of  such  corporation  holding  over,  solely  for  the 
purpose  aforesaid;  Provided^  however,  That  no  such  dis- 
solution of  the  corporation  shall  in  any  manner  discharge 
or  impair  the  bonded  debt,  or  any  outstanding  obliga- 
tion or  liability  of  such  corporation,  nor  exonerate  any 
properties  which  may  be  situate  within  the  limits  of 
such  Water  District  or  Water  Division  as  the  same  were 
at  the  date  of  issuing  of  such  bonds,  or  incurring  such 
obligation  or  liability,  from  taxation  for  raising  moneys 
for  discharging  the  principal  and  interest  of  such  bonded 
debt,  or  other  obligation  or  liability;  and  notwithstand- 
ing any  such  dissolution  the  Board  of  Directors  of  such 
Water  Division  or  Water  District  holding  office  at  the 
time  of  such  dissolution,  shall  continue  in  office  for  the 
purpose  of  annually  levying  the  tax  for  discharging  such 
indebtedness  or  the  interest  thereon,  and  may  from  time 
to  time  fill  vacancies  in  such  Board,  and  appoint  the 
officers  necessary  for  assessing,  levying  and  collecting 
such  tax  and  applying  the  proceeds  to  such  payment. 

SEC.  36.  All  proceeds  of  the  annual  tax  levied  in 
any  such  Water  District  or  Water  Division,  or  moneys 
otherwise  received  into  the  treasury  of  such  corporation 
and  not  necessary  for  discharging  the  indebtedness  of 
such  Water  District  or  Water  Division  then  due  or  pres- 
sently  to  mature,  shall  be  let  out  by  the  Board  of  Direc- 
tors of  such  corporation  upon  first  mortgage  of  lands 
situate  within  such  Water  District  or  Water  Division 


;XJx    AT 


CONCERNING  THK    WATKRS  OF  THE  STATE.      193 

for  such  rate  of  interest  as  can  be  procured  therefor,  and 
for  such  time  as  to  the  Board  of  Directors  shall  seem  fit. 
No  such  loan  shall  be  made  to  any  member  of  such 
Board  of  Directors,  or  to  any  one  within  one  year  there- 
tofore a  member  of  such  Board  of  Directors. 

SEC.  37.  The  Directors  of  each  Water  District  and 
Water  Division  shall  severally  be  paid  from  the  treasury 
thereof,  five  dollars  for  each  day's  attendance  on  the 
meetings  of  the  Board,  and  the  same  per  diem  whenever 
by  resolution  of  the  Board  entered  upon  the  records 
thereof,  they  shall  be  employed  in  discharging  any 
official  duty,  with  the  same  mileage  for  all  journeys  made 
in  attending  such  meetings,  or  any  official  duty,  as 
allowed  to  the  Sheriffs  in  counties  of  the  second  class; 
the  Treasurer  and  clerks  shall  receive  such  additional 
compensation  for  their  services  as  may  be  provided  by 
general  by-law;  the  compensation  of  the  Water  Police 
and  other  officers  and  servants  of  the  Board  shall  be  as 
the  Board  of  Directors  may  prescribe. 

SEC.  38.  No  money  shall  be  drawn  from  the  treas- 
ury of  any  such  corporation,  save  pursuant  to  the  order 
of  the  Board  of  Directors  duly  entered  of  record,  and 
upon  warrant  signed  by  the  President  and  countersigned 
by  the  Secretary  of  the  District.  The  Treasurer  of  every 
such  District,  before  entering  upon  the  duties  of  his 
office,  shall  be  bound  in  such  sum  as  may  be  prescribed  by 
the  Board  of  Directors,  not  less  than  five  thousand  dollars, 
with  not  less  than  three  sureties  and  conditioned  for  the 
faithful  discharge  of  the  duties  of  his  office,  and  that 
he  will  account  for  and  deliver  to  his  successor  in  office 
all  moneys,  bonds,  bills,  books  of  account  and  other 
properties  and  things  whatsoever  that  may  come  to  his 
hands  by  virtue  of  his  office.  Any  member  of  the  Board 
of  Directors,  or  any  surety  in  the  bond  of  such  Treas- 
urer, shall  be  entitled  at  all  times  to  examine  the  books 
of  account,  vouchers,  moneys  on  hand,  evidences  of  debt, 
and  other  documents  whatsoever  in  the  office  of  the 

26 


194     ,  REPORT   OF  THE   COMMISSION 

v*  \y 

Treasurer;  and  the  Board  of  Directors  may  at  any  time 
remove  from  his  office  as  Treasurer,  a  Director  appointed 
to  that  position  and  appoint  another  in  his  stead. 

SEC.  39.  If  the  treasurer  of  any  such  corporation  shall 
in  any  manner  apply  to  his  own  use  any  of  the  moneys 
of  the  District,  or  lend  or  pay  the  same  out  otherwise 
than  hereinbefore  provided,  he  shall  be  deemed  guilty 
of  felony  and  may  be  punished  by  fine  not  exceeding 
five  thousand  dollars,  or  imprisoned  in  the  penitentiary 
not  exceeding  five  years,  or  by  both  such  fine  and  impris- 
onment. 

SEC.  40.  The  properties  of  the  several  inhabitants 
of  such  Water  Divisions  and  Water  Districts  becoming 
incorporated  in  pursuance  hereof,  shall  not  be  liable  to 
be  taken  in  execution  for  the  debts  of  such  corporations. 

SEC.  41.  This  Article  may  be  amended  or  repealed 
at  the  pleasure  of  the  General  Assembly. 


ARTICLE    XVI. 

OF  PROCEEDINGS  FOR  THE  PUNISHMENT  OF  OFFENSES  PRESCRIBED 
BY   THIS  ACT. 

SECTION  i.  In  all  cases  declared  misdemeanors  by 
this  act,  where  the  punishment  does  not  exceed  a  fine  of 
three  hundred  dollars,  or  imprisonment  in  the  county 
jail,  the  same  may  be  prosecuted  before  any  Justice  of 
the  Peace  of  the  county  wherein  the  offense  was  com- 
mitted. 

SEC.  2.  Any  Justice  of  the  Peace  of  such  county, 
upon  complaint  being  made  before  him  under  oath  that 
any  person  hath  committed  any  violation  of  this  Act, 
mayissue  his  warrant  directed  to  the  Sheriff  or  any  Con- 
stable of  such  county,  commanding  such  officer  to  arrest 
the  person  charged  and  bring  him  forthwith  before  such 
Justice  of  the  Peace  or  some  other  Justice  of  the  Peace  to 
be  dealt  with  according  to  law,  and  such  officer  shall 


CONCKI  HE  \VATI-:K-  :•:.     1  '.»."> 

:hc  same  power  touching  the  arrest  and  detention 
of  such  persons  as  in  other  cases.  A  special  Constable 
may  be  appointed  by  any  Justice  of  the  Peace  for  the 
execution  of  any  such  warrant. 

SEC.  3.  The  Justice  of  the  Peace  before  whom  such 
person  or  persons  may  be  brought  for  trial  shall  hear 
and  determine  the  matter  and,  if  the  accused  be  found 
guilty,  assess  the  fine  and  term  of  imprisonment,  if  im- 
prisonment be  a  portion  of  the  punishment  for  such 
offense,  or  require  such  person  to  give  bail  to  answer  to 
an  indictment  where  it  shall  appear  that  such  person  in 
the  act  complained  of  was  guilty  of  an  offense  exceeding 
the  jurisdiction  of  said  justice;  Provided,  however, 
That  in  the  prosecution  of  offenses  punishable  by  Justices 
of  the  Peace,  the  accused  shall  be  entitled  to  trial  by 
jury,  in  any  such  case  to  be  summoned  as  in  complaints 
before  a  Justice  of  the  Peace  for  the  offense  of  assault  and 
battery. 

SEC.  4.  The  accused  person  shall  be  entitled  to 
appeal  from  the  judgment  of  the  Justice  of  the  Peace 
as  provided  in  other  criminal  prosecutions. 

SEC.  5.  All  fines  collected  for  violations  of  this  Act 
shall  be  paid  into  the  general  fund  of  the  county 
wherein  the  offense  was  committed,  or  where  the  Water  * 
District  wherein  the  offense  was  committed  hath  become 
incorporated,  then  to  the  Treasurer  of  such  Water  Dis- 
trict, to  be  disposed  of  in  the  discretion  of  the  Board  of 
Directors  of  such  District;  or,  if  said  Water  District  be 
not  incorporated,  and  the  Water  Division  is  incorpor- 
ated, then  to  the  Treasurer  of  said  Water  Division,  sub- 
ject to  like  disposition. 

And  beit  further  enacted,  That  all  acts  and  parts  of 
acts  in  conflict  with  the  foregoing  sixteen  (16)  Chapters 
or  any  thereof,  and  particularly  the  following  acts  and 
parts  of  acts,  to  wit:  u  Chapter  forty-five  (45)  of  the  Re- 
vised Statutes  of  the  State  of  Colorado  (1868) ;"  "An  act 


196  REPORT  OF  THE  COMMISSION 

defining  rights  and  liabilities  of  miners  and  millmen  in 
certain  cases,"  approved  February  IT,  1870;  "An  act 
concerning  irrigation  in  Kl  Paso  county,"  approved 
February  5,  1872:  "An  act  to  provide  for  the  drainage 
of  mines,"  approved  January  31,  1872;  "An  act  to 
amend  Chapter  forty-five  (45)  of  the  Revised  Statutes 
of  Colorado,"  approved  February  9,  1872;  "An  act 
to  prevent  the  waste  of  water  during  the  irrigating 
season,"  approved  February  n,  1876;  "An  act  to 
prevent  the  use  of  water  in  meadow  lands  in  the  county 
of  Huerfano,  in  certain  months,"  approved  February 
10,  1876;  "An  act  to  regulate  the  use  of  water  for 
irrigation,  and  providing  for  settling  the  priority  of 
right  thereto,  and  for  payment  of  the  expenses  thereof, 
and  for  payment  of  all  costs  and  expenses  incident  to 
said  regulation  of  use,"  approved  February  19,  1879; 
"An  act  to  make  further  provisions  for  settling  the 
priority  of  rights  to  the  use  of  water  for  irrigation,  in 
the  District  and  Supreme  Courts,  and  for  making  record 
of  such  priorities,  and  for  payment  of  costs  and  ex- 
penses incident  thereto, "  approved  February  23,  1881; 
"An  act  to  provide  for  the  extension  of  the  right  of  way 
for  ditches,  canals  and  feeder  (feeders)  of  reservoirs  in 
certain  cases,  and  requiring  registration  of  all  such  here- 
^after  made  or  enlarged,"  approved  February  n,  1881; 
"An  act  to  punish  for  breaking  or  disturbing  the  gates  or 
banks  of  ditches,  canals,  reservoirs  and  feeders  thereof," 
approved  February  12,  1881;  "An  act  relating  to  irri- 
gating ditches  and  manner  of  their  construction,"  ap- 
proved February  12,  1881;^  "An  act  to  provide  for  head- 
gates  for  irrigating  ditches,"  approved  February  u, 
1881;  "An  act  to  amend  an  act,  entitled,  '  an  act  to  reg- 
ulate the  use  of  water  for  irrigation,  and  providing  for 
settling  the  priority  of  rights  thereto,  and  for  payment 
of  the  expenses  thereof,  and  for  payment  of  all  costs  and 
expenses  incident  to  said  regulations  of  use,'  approved 
February  19,  1879,"  approved  April  9,  1-885;  "An  act 
to  repeal  section  five  (5),  of  an  act  entitled,  '  an  act  to 


THI-:  WATERS  or  TIII-:  STATE.     l'.»7 

provide  for  the  appointment  of  a  State  Engineer,  and  to 
define  his  duties  and  regulate  his  pay,  and  for  the  ap- 
pointment of  his  assistants,  and  the  establishment  of 
water  divisions,'"  approved  March  5,  1881;  the  same 
being  section  18o6,  of  the  General  Statutes,  1883;  and 
also  to  amend  section  fifteen  (15),  of  an  act,  entitled, 
c'An  act  to  regulate  the  use  of  water  for  irrigation,  and 
providing  for  settling  the  priority  of  right  thereto,  and 
for  payment  of  the  expenses  thereof,  and  for  the  pay- 
ment of  all  costs  and  expenses  incident  to  said  regula- 
tion of  use,"  approved  February  19,  1879,  the  same 
being  section. 1751  of  the  General  Statutes  of  1883  ;  and 
to  establish  the  San  Juan  Water  Division  ;  also,  to 
create  Water  Districts  in  established  Water  Divisions  ; 
also,  to  provide  for  utilizing  testimony  heretofore 
offered  as  evidence  in  the  adjudication  of  water 
rights,"  approved  April  i,  1885;  "An  act  concern- 
ing irrigation,  and  the  purification  of  the  waters 
of  the  streams,  lakes  and  reservoirs  of  the  State 
of  Colorado,  and  to  provide  for  the  expense  thereof," 
approved  April  7,  1885;  uAn  act  to  regulate  the  mode 
of  fixing  the  rates  of  compensation  by  Boards  of  County 
Commissioners,  for  water  furnished  and  delivered  for 
irrigation  and  other  lawful  purposes,  from  ditches, 
canals,  conduits  and  reservoirs;  and  to  repeal  laws 
inconsistent  therewith,  and  punish  offenses  contrary 
thereto,"  approved  April  4,  1887;  "An  act  providing 
for  the  appointment  of  Superintendents  of  Irrigation  for 
the  Water  Divisions  of  this  State;  fixing  their  compen^ 
sation  and  providing  for  the  payment  thereof;  prescrib- 
ing their  duties,  and  requiring  a  bond  for  the  faithful 
performance  of  such;  requiring  Clerks  of  District  Courts 
to  furnish  such  Superintendents  with  certain  certified 
decrees,  and  providing  for  the  payment  of  such  Clerk's 
fees,"  approved  April  4,  1887;  An  act,  entitled,  "An 
act  concerning  irrigation,"  approved  April  17,  1889; 
uAn  act  to  amend  Section  forty-two  (16),  Chapter 
LYIL,  of  the  General  Statutes  of  the  State  of  Colo- 


198  REPORT  OF  THE  COMMISSION 

rado,  entitled  ''Irrigation,"  requiring  the  Water  Com- 
missioners to  give  bond  in  an  amount  to  be  fixed  by 
the  Board  of  County  Commissioners,  and  providing  for 
the  Governor  to  fix  the  amount  of  such  bond  in  the 
event  that  the  County  Commissioners  disa'gree  thereon," 
approved  March  15,  1887;  "An  act  regulating  the  dis- 
tribution of  water,  the  superintendence  of  canals  or 
ditches  used  for  the  purposes  of  irrigation,  and  provid- 
ing a  penalty  for  the  violation  thereof,"  approved 
March  19,  1887;  "An  act  to  define,  prohibit,  punish  and 
restrain  extortion  and  other  abuses  in  the  management  of 
ditches,  canals  and  reservoirs,"  approved  April  4,  1887; 
uAn  act  to  provide  for  the  better  protection  of  water 
rights,  and  to  declare  a  liability  in  damages  for  the 
infringement  thereof,"  approved  April  4,  1887;  "An 
act  to  amend  section  two  of  an  act  of  the  General  As- 
sembly of  the  State  of  Colorado,  entitled  'An  act  to 
provide  for  the  extension  of  the  right  of  way  for 
ditches,  canals  and  feeders  of  reservoirs  in  certain 
cases,  and  requiring  registration  of  all  such  here- 
after made  or  enlarged,'"  approved  February  u,  i88i> 
being  General  Section  No.  1720  of  the  General 
Statutes  of  the  State  of  Colorado,  which  is  section 
ten  of  Chapter  LVII.  of  said  General  Statutes,  en- 
titled "Irrigation,"  approved  April  20,  1887;  "An 
act  to  establish  and  define  priority  of  appropria- 
tions of  water  drained  from  sources  other  than 
natural  streams,"  approved  April  17,  1889;  also,  all  that 
part  of  the  third  section  of  Chapter  XCIV  of  the 
General  Statutes  of  Colorado,  in  words  and  figures  as 
follows,  to- wit:  "And  water  sold  by  the  inch  by  any 
individual  or  corporation  shall  be  measured  as  follows, 
to-wit:  Every  inch  shall  be  considered  equal  to  an  inch 
square  orifice  under  a  five  inch  pressure,  and  a  five  inch 
pressure  shall  be  from  the  top  of  the  orifice  of  the  box 
put  into  the  banks  of  the  ditch,  to  the  surface  of  water; 
said  boxes  or  any  slot  or  aperture  through  which  such 
water  may  be  measured,  shall  in  all  cases  be  six  inches 


KG   Till-    WATER!  i-..      1 '.>'.> 

perpendicular,  inside  measurement,  except  boxes  deliv- 
ering less  than  twelve  indies,  which  maybe  square,  with 
or  without  slides;  all  slides  for  the  same  shall  move  hor- 
izontally and  not  otherwise;  and  said  box  put  into  the 
banks  of  ditch  shall  have  a  descending  grade  from  the 
water  in  ditch  of  not  less  than  one-eighth  of  an  inch  to 
the  foot,"  are  hereby  repealed,  and  all  proceedings  now 
in  progress  under  any  of  the  said  statutes  or  amend- 
ments thereof  for  establishing  the  rights  or  priorities  of 
right  of  any  person  or  corporation  to  water  are  hereby 
abated;  Provided,  however,  That  save  as  hereinbefore 
especially  provided  such  repeal  shall  not  annul  or  impair 
the  effect  of  any  adjudication  heretofore  had  under  any  of 
the  said  enactments  for  establishing  the  rights,  or  priori- 
ties of  right  of  any  person  or  persons  in  water  nor  shall 
such  repeal  be  construed  to  take  away  any  right  acquired 
under  any  of  the  said  enactments. 


INDEX. 


ART. 
ABANDONMENT— 

failure  to  use  the  water  for  three  years II  6 

or  for  three  irrigating  seasons       ....'' II  6 

not  if  party  entitled  under  disability II  6 

or  forcibly  prevented 

or  excluded  from  lauds  where  used II  6 

or  where  irrigation  unnecessary II  6 

use  of  water  not  to  be  resumed  after IX  11 

refusing  to  pay  carriers  rate  equivalent  to IX  n 

refusing  to    comply  with  reasonable  regulations  of  carrier 

equivalent  to IX  11 

ADJUDICATION  OF   PRIORITY— 

jurisdiction  conferred  on  certain  district  courts VIII  i 

clerks  of  district  court  to  transmit  all  depositions,  reports  of 
referree,  etc.,  taken  under  former  acts  to  clerks  of  such 

courts VIII  2 

fees  of  clerks  for VIII  3 

state  engineer  to  transmit  to  water  commissioner,  super- 
intendent of  irrigation  and  owner  of  each  ditch  printed 
instructions  as  to  construction  of  rating-flumes,  etc  ...  VIII  5 
proprietors  of  ditches  desiring  shall  cause  works  to  be  meas- 
ured and  rated  and  a  certificate  of  measurement  and  rat- 
ing, etc.,  approved  by  state  engineer  and  procure  a  sur- 
vey and  map  of  works  ...  VIII 

survey  and  map  not  required  where  same  information 

on  file  in  state  engineer's  office VIII  9 

proceedings  for;  statement  to  be  filed  by  proprietor  of  ditch  .        VIII  13 

petition  for  may  be  filed  at  any  time  after  September  i ,  A. 

D.  1891 VIII  14 

order  to  be  entered  fixing  time  of  hearing VIII  15 

clerk  to  issue  citation VIII  15 

citation   to  be    transmitted    to  water  commissioner 

with  copies VIII  15 

and  published  in  each  water  district VIII  15 

clerk  to  transmit  list  of  ditches  to  water  commis- 
sioner         VIII  15 

water  commissioner  to  serve  citation VIII  15 

manner  of  service VIII  15 

continuance,  service  not  had VIII  17 

further  continuances  allowed VIII  i7 

all  persons  deemed  parties VIII  16 

may  attend  by  counsel  or  in  person VIII  16 

and  produce  evidence  or  cross  examine  the  witnesses 

produced  by  others VIII  16 

appointment  of  referee,  times  and  places  of  his  attendance 

to  be  fixed VIII  17 

times  and  places  may  be  changed VIII  18 

referee  to  attend  in  each  water  disti  ict VIII  18 

court  to  appoint  state's  attorney VIII  19 

referee  and  state's  attorney,  qualifications  for  .   .       VIII  20 

•JO 


202 


INDEX. 


ADJUDICATION  OF   PRIORITY— CONTINUED— 

not  to  be  interested  in  any  ditch,  etc.,  or  the  stock  thereof 
or  consumer  of  water,  nor  counsel  or  attorney  for  pro- 
prietors    VIII  20 

order  for  appointment  of  referee  or  attorney,  or  for  attend- 
ance of  referee  to  be  entered  of  record VIII  22 

referee  and  attorney  to  take  oath  of  office      VIII  22 

state's  attorney  to  be  entitled  to  subpoenas,  etc. VIII  2$ 

duties  of  state's  attorney  .   .  VIII  24 

order  appointing  referee  or  specifying  the  time  for  his  attend- 
ance, to  be  published  by  clerk  of  court VIII  25 

copies  to  be  transmitted  to  water  commissioner,  to  be  posted 

in  five  public  places- VIII  25 

referee  to  attend  at  times  and  places  mentioned  in  order  .   .        VIII  26 

and  reduce  to  writing  all  testimony  offered VIII  26 

no  evidence  to  be  received  as  to  any  ditch  unless  proprie- 
tors have  filed  statement  required  by  thirteenth  section 
and  caused  ditch  to  be  measured,  and  map  and  certifi- 
cate to  be  filed,  etc.,  save  by  leave  of  court VIII  26 

court  not  to  disregard  rights  of  persons  having  works  in 

progress.  VIII  26 

referee  to  administer  oaths  and  issue  subpoenas  .   .   .  .   .        VIII  27 

to  reduce  depositions  to  writing  in  narrative  form.  .        VIII  27 

receive  all  deeds,  etc VIII  27 

note  all  objections VIII  27 

may   examine  witnesses  if  necessary VIII  27 

to  give  reasonable  opportunity  to  all  persons  to  be  heard  .  VIII  28 

testimony  not  to  be  heard  except  in  water  district  where 

head  of  ditch  situate        .  .  VIII  28 

unless  after  special    order  of  referee  and  notice  to 

persons  interested  VIII  28 

referee  may  adjourn  hearing  of  testimony  to  any  other  place 

in  the  same  water  district      VIII  28 

referee  to  cau«e  all  testimony  to  be  taken  in  type-writing  .        VIII  28 

make  index  of  ditches,  etc VIII  28 

have  same  with  him  during  hearing  and  allow  in- 
spection    .   . VIII  28 

return  testimony  and  index  on  closing  the  examin- 
ation and  notify  judge VIII  28 

district  court  or  judge  may  remove  referee  or  state's  attorney; 

in  case  of  negligence,  partiality,  etc.,  shall  do  so VIII  29 

and  appoint  successor  and  other  times  for  attendance      VIII  29, 
in  case  of  removal  of  referee  or  state's  attorney,  all  certifi- 
cates, depositions,  plats,  etc.,  to  be  delivered  to  successor      VIII  29 
depositions,  statements  of  claimants,  copies  of  maps  to'be  de- 
livered to  referee VIII            30 

the  same  to  be  subject  to  inspection VIII  30 

certificate  of  rating  prima  facie  evidence  of  maximum  capacity      VIII  31 

depositions  taken  under  former  adjudications  net  evidence  ; 

save,  etc VIII  31 

former  decrees-not  evidence  in VIII  31 

person  disturbing  proceedings  before  referee  or  refusing  to 

obey  subpoena  deemed  guilty  of  contempt VIII  32 

fees  of  witness  attending  before  referee     ' ....        VIII  33 

on  return  of  testimony  court  to  appoint  day  for  final  hearing       VIII  34 

any  person  may  file  exceptions  to  report  of  referee VIII  34 

proceedings  on  such  exceptions VIII  34 


APjnno.  PRIORITY  .  D— 

second  reference  allowed,  or  may  hear  evideno 

,rt        VIII  34 

am!  VIII  34 

terms  of  decree.  VIII       34,58 

no  person  to  be  adjudged  entitled  t»  the  use  of  waters  shown 
to  have  been  abandoned,  or  which  have  not  been  actually 

applied  to  beiu VIII  34 

amount  to  be  designated  in  cubic  feet  per  second,  or  in  < 

of  reservoirs  according  to  cubic  c.mum- VIII  34 

decree  to  specify  number  of  times, when  reservoir  may  be 

filled          .    ." VIII  34 

appropriations  to  be  arranged  and  numbered  in  consecutive- 
order  throughout  the  water  division  ...  VIII  34 

without  reference  to  location  of  works  in  the  division.        VII  34 

ditches  incomplete,  etc.,  saving  of  rights VIII  35 

proceedings  for  establishment  of  rights  of  proprietors  of  such 

ditches VIII  35 

proceedings  where  proprietor  of  ditch,  etc.,  has  failed  to 
cause  map  and  certificate  of  measurement  and  rating  to 
be  filed  by  the  day  first  appointed  for  hearing  the  testi- 
mony    .  .  VIII  37 

persons  refusing  to  produce  any  deed,  book  or  other  evidence 

not  to  be  allowed  the  benefit  of  any  testimony  ....  VIII  38 

discrict  court  may  make  rules  for  regulating  proceedings  of 

court  or  referee VIII  39 

may  order  rehearing VIII  41 

appeals  allowed  from  decree VIII  41 

proceedings  upon  such  appeal VIII      42~43 

proceedings  and  parties  to  appeal VIII      41-43 

original  depositions  may  be  transmitted VIII  44 

appeal  n ot  to  operate  as  superseded* VIII  45 

publication  of  notice  or  service  of  process  how  proved     .   .    .        VIII  46 

if  transcript  of  record  and  testimony  be  not  filed,  appeal  to  be 

dismissed VIII  47 

supreme  court  to  make  rules VII  [  48 

anj-  person  allowed  to  bring  any  suit  or  action  for  establish- 
ing his  right  . VIII  47 

preliminary  injunction  not  to  issue  in  such  case     VIII  49 

decree  final  after  four  years;  except,  etc '.....        VIII  50 

copy  of  to  be  certified  to  state  engineer VIII  51 

compensation  of  state's  attorney  and  referree VIII  52 

fees  of  state's  attorney,  referee,  clerks  of  district  courts  and 

other  officers  and  of  witnesses,  how  apportioned  and  paid       VIII  52 

procuring  false  rating  or  measurement  or  any  false  report  of 

testimony;  penalty VIII  53 

persons  aupropriating  subsequent  to  junior  appropriator  in 

any  decree,  how  to  establish  rights VIII  54 

decree  not  to  impeach  former  decree;  unless,  etc VIII  54 

fees  of  publisher  of  notice VIII  55 

APPROPRIATION   OF   WATERS— 

right  of  grantee II  i 

what  deemed  an  appropriation  of II  2 

water  hoisted  from  mines  or  drained  from  lands  and  flow-, 

ing  away II  5 

abandoned  waters,  the  subject  of II  6 

for  storage II  7 


204  INDEX. 

ART.  SEC. 

APPROPRIATION  OF  WATERS— CONTINUED— 

dates  from  commencement  of  work II  9 

if  reasonable  diligence  exercised II  9 

or  from  date  of  filing  of  map II  9 

to  be  effectual  only  as  to  amount  actually  applied  to 

beneficial  use II  9 

by  natural  overflow Ill  7 

of  subterranean  waters        XII  i 

by  artesian  wells XII  17 

ARTESIAN    WELLS— 

persons  sinking  or  boring  to  keep  record XII  3 

and  file  verified  statement  in  office  of  state  engineer, 

etc. XII  3 

proprietors  of  wells  heretofore  sunk  to  file  like  statements, 

etc XII  4 

blanks  to  be  furnished  by  state  engineer  ...       ...  XII  5 

proprietors  of  to  cause  to  be  cased XII  6 

appropriation  of  waters  of         XII  7 

waters  of  not  to  be  allowed  to  go  to  waste XII  8 

certain  officers  may  visit  and  inspect XII  10 

failure  to  keep  record  of,  or  make  statement,  or  allowing 
water  to  flow  to  waste,  or  preventing  any  officer  from 

inspecting;   penalty XII  10 

ASSISTANT  AND   DEPUTY   ENGINEERS— 

to  be  allowed  to  pass  over  private  lands  for  official  purposes  IV  17 

to  close  gates  after  passing IV  17 

appointment  of V  n 

appointment  and  revocation  of  to  be  in  writing  and  recorded  V  n 

oath  of  office  and  bond V  11-15 

compensation  of V  12 

to  use  the  cubic  foot,  etc.,  in  measurements V  12 

measure  and  rate  ditches  and  reservoirs  and  make  certifi- 
cates thereof .  V  16 

contents  of  certificate V  16 

penalty  for  false  certificate V  16 

swearing  falsely  to V  16 

not  liable  in  damages  unless  guilty  of  corruption,  etc  ....  V  47 

to  take  notes  of  ^very  survey  made VIII  6 

what  to  set  forth VIII  6 

to  prepare  map  of  survey  and  transmit  same  to  state  engi- 
neer with  copy  of  field  notes,  verified  by  his  affidavit   .   .  VIII  6 

scale  of  map .  VIII  7 

making  false  measurement  or  rating  of  certificate  thereof; 

penalty VIII  53 

ASSISTANT  WATER  COMMISSIONERS—  * 

to  be  appointed  on  recommendation  of  superintendent  of 

irrigation V  27 

on  nomination  of  water  commissioner V  27 

state  engineer  to  appoint            • V  27 

appointment  to  be  in  writing  under  seal  and  record  pre- 
served .....              V  26 

oath  of  office  and  compensation V  27 

to  be  paid  on  audit,  apportionment  and  allowance  of  state 

engineer .  V  27 

to   obey  instruction  of  water  commissioner  and  have  the 

powers  of  water  commissioner V  27 


INDI-X.  205 


ASSISTANT    WA'II.K    CoM  M  I->>IONERS— CONTINUED— 

to  have  powers  of  peace  officer     V  32 

may   arrest    any  person    opening  head-gate,   etc.,    without 

authority ...  V  32 

not  liable  in  damages  unless  guilty  of  corruption V          47 

CARRIERS  OF  WATER— 

not  to  exact  royalty  or  bonus  as  condition  precedent  to  apply- 
ing for  water IX  i 

to  carry  on  payment  of  the  charges  fixed  pursuant  to  law  .   .  IX  i 

any  money,  etc.,  paid  or  accepted  in  violation  deemed  ex- 
tortionate and  illegal .  .  IX  i 

may  be  recovered  back IX  i 

receiving  or  retaining  bonus  or  royalty,  guilty  of  misde- 
meanor; penalty • IX 

refusing  to  furnish  or  deliver  water  which  may  by  use  of 

reasonable  diligence,  etc.,  guilty  of  misdemeanor;  penalty          IX  3 

not  required  to  deliver  up  waters  devoted  to  its  own  uses  on 

such  demand IX  3 

entitled  to  reasonable  time  after  completion  of  works  for  pre- 
paring lands  for  irrigation  or  equipping  works IX  3 

attorney  general  to  institute  proceedings  in  quo  warranto  or 

mandamus ...  IX  4. 

officers  of  a  corporation  or  member  of  association,  superin- 
tendent or  agent  violating  the  foregoing  provisions  liable 
to  restore  the  unlawful  consideration  and  be  punished  as 
if  the  thing  were  done  for  his  sole  benefit IX  5 

to  keep  flow  of  water  sufficient,  etc.,  from  April  15  to  Novem- 
ber 15  IX  6 

to  construct  and  maintain  outlets  and  gates  for  delivering 

water  to  consumers '  '  IX 

multiplicity  of  outlets  to  be  avoided;  location  of  outlets  under 
control  of  superintendent;  proprietors  may  agree  with 
consumers  to  construct  and  maintain  outlets  and  gates  .  IX 

gate  to  be  constructed  so  as  to  be  set  and  locked IX 

omitting  to  construct  gate  when  required  by  water  commis- 
sioner: penalty .  IX 

superintendent  to  measure  water  of  consumers IX  9 

to  apportion  in  time  of  scarcity  .    .       IX  9 

liability  in  damages  to  persons  deprived  of  water IX  10 

persons  having  procured  right  to  water  from,  entitled  to  con- 
tinue enjoyment IX  n 

proviso IX  ii 

not  to  entitle  person  to  resume  after  abandonment IX  n 

nor  after  refusal  to  pay  lawful  rate IX  11 

or  to  comply  with  reasonable  regulations  prescribed 

by  carrier IX  11 

all  grants,  leases,  etc.,  toothers  void  as  against  them IX  12 

proceedings  for  adjudication  of  rights  and  priorities  of  con- 
sumers    IX  13-22 

may  procure  water  to  be  carried  in  the  works  of  any  other 

carrier .   .    .   .    •       IX  62 

CITIES    AND    TOWNS— 

may  construct  works  for  supplying  water I  7 

may  take  lands  and  water  right  by  condemnation I  8 

not  to  divert  or  store  up  water  in  unreasonable  quantity  .   .  I  9 

nor  allow  water  to  flow  to  waste I  9. 


206 


INDEX. 


CITIES  AND  TOWNS-CONTINUED— 

relief  against  unreasonable  accumulation  or  waste  of  water  by  I           10 

action  against  to  be  in  name  of  people I           1 1 

fees  of  special  counsel      I           n 

and  other  costs,  how  apportioned  and  paid n 

adjudication  of  water  necessary  for  supplying 12 

who  may  institute  suit  for 12 

parties  to  .   .          .   .    .    . ' .  12 

suit  to  be  defended  by  attorney  general 13 

costs  of  action,  how  apportioned  and  paid I           13 

proceedings  in  suit             ... I            14 

decree,  what  to  contain  and  direct I           15 

appeals  and  writs  of  error  allowed  from I           16 

not  entitled  to  damage  for,  where  street,  etc.,  taken  for  ditch  III             6 
may  make  regulations  for  enclosing  excavations  and  bridg- 
ing ditches,  etc Ill             7 

not  required  to  make  certificate  as  to  names  of  consumers.  .  VI           12 

CONDEMNATION— 

by  proprietors  of  lands,   across  ditch  constructed  through 

same I             4 

towns,  railway  companies,  mill,  mine,  etc.,  may  take  water 

right  by »  I             8 

for  site  of  ditch,  reservoir,  filtering  works,  enlargement  or 
relocation  of  ditch,  relocation  of  head-gate,  enlargement 
of  ditch  constructed  by  others,  for  ditches  or  pipes  for 

distribution,  for  site  of  wheel  or  pump  allowed Ill             i 

only  lauds  necessary  to  be  taken II             2 

ditch,  etc.,  to  be  located  along  shortest  route II             2 

for  mill  and  roads  therefrom Ill             3 

for  tail-race Ill             3 

no  lands  to  be  burdened  with  two  ditches  unless,  etc Ill             4 

proceedings  for  taking  lands  for  enlargement  of  ditches  .   .  Ill             4 

parties  to Ill             4 

decree  for Ill             4 

through  streets  of  city,  damages  payable  only  to  lot  owners  .  Ill             6 

for  dam  or  ditch  constructed  to  remedy  change  in  stream  .   .  Ill         7-8 

for   drain XIV             2 

CONSUMERS   OF   WATER— 

may  transfer  right VI             i 

or  change  place  or  manner  of  use VI             i 

not  to  authorize  ^conveyance  of  water  through   any  other 

ditch   .....' VI             i 

conveyance  and  agreement  for  transfer  to  be  in  writing  ...  VI             2 

and  recorded VI             3 

certificate  of  change  of  place  of  use  to  be  filed  and  recorded.  VI             4 
certificate  of  names  of,  under  every  ditch,  etc.,  to  be  made 

and  recorded  by  proprietors  of  ditch VI              6 

certificate  prima  facie  evidence           VI             8 

any  consumer  or  person  injured  by  such  certificate  or  omis- 
sion to  make  the  same  may  bring  suit  to  establish  his 

rig-ht  . VI        9-10 

parties  and  proceedings  in  such  suit VI           n 

not  required  to  pay  royalty » IX              i 

may  require  proprietors  of  ditch  to  construct   gates    and 

outlets IX             8 

may  agree  with  proprietors  of  ditch  to  construct  and  main- 
tain such  gates;  neglect  to  do  so;  penalty IX  8 


IND1 


r.Mi- K:-.  ( i] 

M.lciit  nf  ditch  to  mr.iMuc  u.  .    .  IX 

un>l  ;i<lcnttlu!< 

of  sup* :  iiUi-ii<kiit .        IX  9 

Having' Obtained   riyht  to  use  of  w.Urr  entitled   t<>  continue 

enjoyment;  proviso u 

having  abandoned,  not  entitled  to  retu.me  tl*e  of  water  ...  ix  n 
to  pay  water  raU-                                        ulationsof 

r  equivalent  to  abandonment ix  n 

those  first  enjoying  waters  of  ditch,  etc.,  to  amouut  reasona- 

ufflcient,  of  one  priority  ...          IX  13 

all  Brants,  leases,  etc.,  to  others  void  as  against  them  .   ...  IX  12 

proceedings  for  establishing  rights  and  priorities  of IX  13-22 

appeals IX  25 

COUNTY   COMMISSIONERS— 

regulation  of  proceedings  for  establishing  water  rights  ...  X  1-7 

rate  to  be  adjusted  according  to  distance  carried  X  8 

if  consumer  under  any  enlargement  deprived  of  water  in 

time  of  scarcity,  reasonable  diminution X  8 

maximum  rate  to  those  using  water  during  the  whole  year  .  X  8 

maximum  rate  to  those  using  only  occasionally X  8 

maximum  rate  for  water  stored  in  reservoirs X  8 

order  to  be  in  force  two  j-ears X  8 

cost  of  proceedings X  8 

any  member  may  issue  subpoenas;  how  served X*  n 

may  require  proprietor  of  works  to  produce  records X  n 

any  member  may  administer  oaths X  n 

fees  of  sheriff  and  constable  for  serving  process X  13 

swearing  falsely  before;  perjury X  12 

refusal  to  obey  subposna  contempt  of  district  court X  15 

cost  of  proceeding,  how  apportioned  .  .  X  16 

110  party  to  examine  more  than  four  witnesses,  etc X  16 

every  member  of  the  board  interested  to  suggest  his  interest 

of  record  and  venue  to  be  changed X  17 

petition  for  change  of  venue X  18 

if  venue  changed  referee  to  be  appointed  to  take  testimony  .  X  19 

to  be  reduced  to  writing  in  narrative  form X  19 

clerk  to  certify  order  of  change  of  venue  to  clerk  of  county  to 

which  sent X  20 

proceedings  thereupon X  20 

appeals  and  writs  of  error  allowed X  22 

what  11133-  be  assigned  for  error  .... X  22 

what, taken  as  part  of  the  record  .  .  X  23 

bill  of  exceptions X  23 

commissioners  refusing  to  sign  bill  of  exceptions  same  to  be 

established  by  affidavit  of  bystanders X  22,34 

appeal  not  to  operate  as  supersedeas ;  save  by  order,  etc  .  .  25 

•appeals,  how  designated X  26 

scire  facias,  how  served X  26 

proceedings  on  appeal  as  in  other  cases X  27 

costs  to  be  in  discretion  of  court X  28 

DISTRIBUTION   OF   WATER— 

to  be  according  to  table  of  priorities V  36 

according  to  decree  heretofore  rendered  until,  etc V  39 

proprietors  of  each  ditch  to  appoint  superintendent  for  ...  V  45 


208 


INDEX. 


ART.  SEC. 

DITCHES   AND   CONDUITS— 

to  be  located  along  the  shortest  route,  etc Ill  ? 

may  be  enlarged  for  carrying  the  waters  of  other  proprietors  III  4 

proceedings  for  securing  such  enlargement Ill  4 

final  rule  for Ill  4 

natural  streams  may  be  made  part  of Ill  5 

head-gate  to  be  placed  in ' IV  6 

to  be  made  satisfactory  to  the  water  commissioner  .  .  IV  6 
rating  flume  to  be  constructed  on  order  of  state  engineer  .  .  IV  6 
to  be  cleaned  and  repaired  by  the  fifteenth  of  April  annually  IV  10 
proprietors  liable  in  damages  to  those  injured  by  their  default  IV  10 
proprietors  failing  to  construct  or  maintain  head-gate  or  rat- 
ing flume  in;  penalty  for IV  9 

water  to  be  excluded  from jy  n 

turning  water  into  after  excluded  by  water  commissioner  .  .  IV  12 

persons  constructing  to  keep  all  public  highways  open     .   .  IV  13 

and  construct  bridge  over IV  13 

penalty IV  14 

proprietors  to  maintain  and  prevent  waste  of  water  from  .  .  IV  15 

liable    in  damages IV  15 

proprietors  to  permit  state  engineer,  etc.,  to  measure  and 

rate IV  16 

persons  hereafter  constructing  to  file  maps  with  descriptive 

statement IV  18 

to  be  verified IV  19 

proprietor  to  appoint  superintendent  of  and  certify  name 

and  address  to  state  engineer.  .   .          .  V  4-5 

in  case  of  death  to  fill  vacancy  and  certify  name  and  address 

to  state  engineer V  4-5 

named  in  former  decrees,  proprietors    proposing  enlarge- 
ment, how  to  proceed     .'••.. VII  4 

proprietors  of  may  procure  water  to  be  carried  in  other  works 

without  loss  of  priority •  IX  26 

DOMESTIC  PURPOSES— 

defined I  i 

includes  irrigation  of  one-half  acre  about  house I  i 

procuring  water  for  and  applying  to  other  uses,  etc.,  a  misde- 
meanor    I  i 

carrier  for  irrigation  not  required  to  deliver  for,  except,  etc.  .  I  i 
water  may  be  taken   for  from  any  ditch  at  any  public  road 

crossing I  2 

or  by  any  person  on  his  own  lands I  2 

or  lands  of  others  by  license I  2 

or  without  such  license  where  lands  uninclosed I  2 

person  resorting  to  ditch  for,  to  see  that  no  injury  be  done  .  I  3 

person  entitled  to  water  for  irrigation  may  fill  cisterns  for  .  I  5 
water  not  to  be  turned  into  open  ditch  for  supplying  when 

resulting  in  unreasonable  waste I  5 

towns  and  cities  may  construct  works  to  take  water  for  ...  I  g 

may  condemn  water  right  for I  8 

DRAINAGE— 


proprietor  of  saturated  lands  may  cut  trenches  and  lay  pipes 

for  draining  thorough  lands  of  others XIV 

may  condemn  right  of  way  ...  XIV 

may  collect  and  appropriate   such  waters XIV 

may  cause  the  same  to  be  carried  in  ditch,  etc.,  of  other  pro- 
prietors   XIV 


209 


I. MINI- NT    POM  \  8EC. 

of  clerks   of   di-tiut  -UK   and   transmitting 

former  decrees  am1.  .:                           VIII  3 

:ii-  1-itation-.,  etc VIII  IS 

,.f  witnesse>  attending  before  referees VIII  33 

of  state's  attorm-y  and  referee    • VIII  52 

how  costs  of  proceedings  for  adjudication  of  priority  appor- 
tioned and  paid  VIII  52 

of  publishers  «>(  newspapers VIII  55 

sheriff  and  constable  for  subpoenas  served  from  county  com- 

inissioners X  13 

witness  attending  county  commissioners X  14 

KS— 

proprietors'of  ditches  may  erect  to  exclude  stock 

free  passage  to  be  left  for  road  crossings 

and  opportunity  at 

gates  at  the  head-gate,  rating-flume,  etc 

openings  in  all  cattle  ranges 

proprietors  of  lands  may  open  passage  through 

proprietor  of  abutting  on  stream  or  reservoir  to  place  and 

maintain  gates  in  for  passage  of  water  commissioner,  etc  IV  17 

ETC.— 
prosecutions    for    before  a  justice  of  the  peace  in  certain 

counties XVI  i 

jurisdiction  of  justice XVI  2 

may  hold  to  bail  in  certain  cases ...  XVI  3 

person  accused  entitled  to  trial  by  jury XVI  3 

appeals  allowed XVI  4 

fines  to  be  paid  into  the  general  fund  of  the  county XVI  4 

or  where  water    district,   etc.,   incorporated    to    the 

treasurer  of  such  water  district,  etc XVI  5 

FORMER  DECREES— 

not  to  be  read  in  evidence VIII  31 

proprietors  of  works  named  in  proposing  enlargement,  how 

to  proceed VIII  4 

former  depositions  not  to  be  read,  etc •  .  VIII  31 

HEAD-GATE— 

to  be  placed  in  any  ditch   hereafter  constructed  diverting 

water  from  natural  stream IV  6 

in  ditches  heretofore  constructed  within  ninety  days  after 

passage  of  this  act •  .  .  .  IV  6 

or  if  out  of  repair,  or  insufficient,  to  be  made  satisfactory  to 

water  commissioner IV  6 

lock  and  key  to  be  placed  on IV  6 

one  key  of  gate  to  be  delivered  to  water  commissioner  ...  IV  6 

to  be  placed  near  head  of  ditch IV  7 

gate  to  be  arranged  so  as  to  exclude  any  part  of  waters  ...  IV  7 

and  locked  at  any  place  ...  IV  7 

failure  to  construct  or  repair,  or  place  suitable  lock  on  or 

deliver  one  key  to  water  commissioner IV  9 

second  offense IV  9 

27 


210 


INDEX. 


ART.  SEC. 

HEAD-GATE — CONTINUED — 

proprietors  liable    in  damages  to  those    injured    by  their 

default IV  10 

proprietors  failing  to  construct  or  maintain,   water  to  be 

excluded IV  n 

ditch  to  be  filled IV  12 

cost  of  filling  to  be  paid  by  county  and  recovered  from  pro- 
prietors           IV  12 

ditch  and  water  right  to  be  sold  on  execution IV  12 

sale  not  to  impair  right  of  consumers IV  12 

redemption  allowed IV  12 

unlawful  interference  with;  penalty XIII  i 

second   offense XIII  z 

INJUNCTIONS— 

not  to  be  allowed  against  state  engineer,  superintendent  of 

irrigation  or  water  commissioner  without  notice V  23 

any  person  may  be  made  party  to  suit • .   .  V  23 

costs  not  to  be  allowed  against  officer  unless,  etc V  23 

district  attorney  to  defend V  23 

preliminary  not  to  issue  to  restrain  the  enforcement  of  final 

decree • VII  49 

LAKES   AND   PONDS— 

belong  to  land  where  situate II  i 

MEASUREMENT   OP   WATER— 

unit  of  measurement  of  flowing  water,  cubic  foot V  13 

unit  of  measurement  of  stagnant  water,  acre  foot V  13 

acre  foot  defined V  13 

state  engineer  to  prescribe  formula  for  estimating  capacity  .  VII  5 
agreements,  etc. ,  for  delivery  of  water  by  inch  or  acre  to 

ascertain  amount  in  cubic  feet  per  second VII  5 

MILLS  AND   MANUFACTORIES— 

lands  may  be  condemned  for  site  of  and  for  tail-race  and 

roads  from Ill  3 

NATURAL  STREAMS- 

appropriation  of  water  of II  i 

waters  discharged  from  lake,  marsh,  bog,  part  of II  2 

waters  seeping  from  ditch  pa't  of II  i 

NOTICE— 

service  of  or  posting,  how  proven      VIII  46 

fees  of  publisher  of  newspaper  . VIII  55 

posting  in-  lieu  of  publication VIII  56 

PRIORITY   OF  RIGHT— 

dates  from  commencement  of  works  heretofore  constructed 

if  due  diligence  be  used II             9 

from  filing  on  map  of  works  hereafter  constructed,  proviso  .  II             9 

among  consumers  of  water  from  same  works IX           12 

order  not  to  be  disturbed  by  discharge  of  waste  water  from 

one  ditch  into  another  ... IV 

clerk  of  district  court  to  certify  copy  of  decree  to  state  engin- 
eer     V            33 

state  engineer  to  prepare  register  of  priorities V           34 


!•'    RIGHT— CONTIM  : 

and  table  of  the  cliches,  etc.,  within  each  division v  34 

contents  of  tables  of  priorities V  34 

and  for  each  \\                       V  34 

transmit  a  copy  thereof  to  each  superintendent  of  irrigation 

and  water  commissioner V  34 

no  claim  of  priority  to  be  regarded  unless  set  forth  in  tables .  V  34 
until  decrees  be  rendered  pursuant  to  this  act,  former  decrees 

to  be  regarded V  39 

former  decrees  not  validated  or  made  obligatory V  39 

award  by  former  decree  deemed  lost  by  non-user V  39 

as  to  water  appropriated  for  other  purposes  than  irrigation, 
or  where  no  decree  hath  been  made,  to  be  ascertained  by 

state  engineer V  40 

proprietors  of  ditches  to  make  certificate  of  those  entitled  to 

use  of  water VI  6 

certificate  ptima  facie  evidence VI  8 

persons  not  named  iu  certificate  may  bring  suit  to  establish 

right VI  9 

or  consumer  under  any  ditch,  proprietors  whereof 

fail  to  make  certificate .   .  VI  10 

parties  to  suit  and  proceedings VI  n 

of  consumers  of  water  under  ditch  to  amount  to  which  rea- 
sonably sufficient,  all  equal IX  12 

proceedings  for  establishing  among  consumers IX      13-22 

costs  in  such  proceedings IX  23 

appeals  and  writs  of  error IX  25 

PROPRIETORS  OF  DITCHES,  ETC.— 

may  fence  ditch IV  i 

may  apply  to  state  engineer  for  order  fixing  time  of  con- 
struction    IV  20 

to  maintain  banks  of  in  repair II  3 

suffering  to  run  to  waste  liable  to  fine '.....  II  3 

to  make  certificate  of  persons  entitled  to  water VI  6 

not  to  exact  or  receive  royalty  or  bonus IX          1-2 

penalty IX  2 

refusing  to  deliver  water  on  tender  or  payment  of  lawful 

rate;  penalty IX  2 

not  required  to  yield  up  water  diverted  for  own  use IX  3 

allowed  reasonable  time  to  prepare  lands  for  irrigation-  or 

works  for  operation IX  3 

corporation  refusing  to  deliver  water,  etc.,  attorney  general 

to  institute  quo  warranto IX  4 

officers  of  corporations,  «uperintendents  and  agents  punish- 
able as  if  the  thing  were  done  for  their  own  benefit  ...  IX  5 
required  to  keep  flow  of  water  in  ditch  from  April  15  to  No- 
vember 15 IX             6 

to  construct  and  maintain  oullets  and  gates  for  delivering 

water  to  consumers IX  8 

multiplicity  of  outlets  to  be  avoided;  location  of  outlets  to  be 
under  control  of  superintendent;  proprietors  may  agree 
with  consumer  to  construct  and  maintain  outlets  and 

gates IX  8 

gate  to  be  constructed  so  as  to  be  set  and  locked IX  8 

omitting  to  construct  gate  when  required  by  any  water  com- 
missioner; penalty IX  8 


212  INDEX. 

ART.  SEC. 

PROPRIETORS  OF  DITCHES,  ETC.— CONTINUED— 

superintendent  of  ditches  to  measure  water  to  consumers  .  .  IX  g 

to  apportion  in  time  of  scarcity IX  9 

liable  in  damages  for  refusing  to  deliver  water IX  10 

person  having  procured  right  to  use  water  to  continue  enjoy- 
ment    IX  ii 

may  procure  water  to  be  carried  in  works  of  any  other  carrier  IX  26 

RATING  FLUMES— 

to  be  constructed  on  order  of  state  engineer,   and  always 

maintained  in  good  order,  etc IV  6 

failure  to  construct,  repair  or  renew;  penalty IV  9 

persisting  in  such  failure IV  9 

proprietors  failing  to  construct  or  maintain,  water  to.  be  ex- 
cluded      IV  ii 

state  engineer  to  issue  instructions  as  to  location  and  manner 

of  construction VII  9 

RATING   OF   DITCHES  AND   RESERVOIRS— 

proprietors  to  permit IV  16 

order  of  district  court  ibr IV  16 

water  commissioner  to  fill  works  for  purpose  of IV  16 

superintendent  to  assist  in IV  16 

deputy  irrigation  engineers  to  make V  16 

certificate  of ,   .  .       .  .  V  16 

to  be  verified V  16 

penalty  for  false V  16 

certificate  to  be  transmitted  to  state  engineer VIII  12 

state  engineer  to  approve  or  disapprove VIII  12 

estimate  of  capacity  in  lieu  of  measurement  and  rating  .   .   .  VIII  12 

certificate  of  to  be  prima  facie  evidence  of  maximum  capacity  VIII  31 

procuring  false  certificate;  penalty VIII  53 

REFEREE- 

see  Adjudication. 

appointment VIII   k       19 

not  to  be  interested  in  ditch,  or  consumer  of  water  therefrom, 

nor  counsel  nor  attorney  for  proprietors VIII  20 

duties  of VIII  26-27-28 

may  administer  oaths  and  issue  subpoenas VIII  27 

cause  depositions  to  be  copied  in  type-writing VIII  28 

may  be  removed  by  district  court  .  .^ VIII  29 

to  turn  over  to  successor  all  depositions,  etc.,  in  his  hands  .  .  VIII  29 

compensation  of,  how  apportioned  and  paid VIII  52 

accepting  of  appointment  being  disqualified VIII  53 

interest  in  works  or  stock  of  corporation  or  accepting  employ- 
ment of  proprietor,  etc.,  during  continuance  in  office; 

penalty VIII  53 

willfully  refusing  to  perform  any  duty  required  of;  penalty  .  VIII  53 
destroying   or    suppressing    any    deposition    or    document; 

penalty VIII  53 

making  any  false  report  of  testimony VIII  53 

RESERVOIRS— 

storage  of  unappropriated  or  flood  waters  allowed II  7 

retention  by  of  flood  waters  previously  appropriated,  water 

commissioner  to  open  gates II  7 

person  entitled  to  use  water  may  store  the  same  for  future 

use  .  II  8 


ART.          SBC. 

RVOIR8— COJrrni 

plans  and  sprei:  •  >  hr  Mibmi:'  '-engineer 

IV  I 

to  proceed  until  plant,  etc.,  approved iv  i 

coiistnK'tintf  without  ;ii>i>t.>v.il  of  engineer  a  misdemeanor  .  IV              3 

fine  and  imprisonment .  IV 

works  to  be  abated IV             4 

t«  of  abatement  of ,  how  collected iv        4-5 

persons  hereafter  constructing,  to  file  maps  with  descriptive 

•m-nt IV  18 

to  be  verified IV  19 

proprietors  of  leach   to  appoint  superintendent  and  certify 

name  and  address  to  state  engineer V  45 

in  case  of  death   to  till  vacancies  and   certify  name  and  ad- 

-  to  state  engineer V         4-5 

proprietors  to  keep  in  repair .   .  IX  7 

.to  construct  and  maintain  outlets  and  gates  for  deliv- 
ering water  to  consumers IX 

multiplicity  of  outlets  to  be  avoided;  location  of  outlets  to  be 
under  control  of  superintendent;  proprietors  of  may  agree 
with  consumers  to  construct  and  maintain  outlets  and 

gates IX 

gates  to  be  constructed  so  as  to  be  set  and  locked IX 

omitting  to  construct  gate  when  required  by  any  consumer; 

penalty IX 

superintendent  to  measure  water  to  consumers IX  9 

to  apportion  in  time  of  scarcity IX  9 

proprietors  of  may  procure  water  to  be  stored  in  other  works 

without  loss  of  priority  .    .    .  IX  26 

condemnation  of  lands  for  site  of;  see  Condemnation. 

RIGHT  OF  WAV- 
see  Condemation. 
ROADS— 

waste  gate  to  be  constructed  to  prevent  flooding  of IV 

any  person  may  .take  water  from  ditch  at I  2 

free  passage  over  all  ditches  to  be  left  at II  4 

proprietors  of  ditches,  reservoirs,  etc.,  to  construct  bridges  .  IV  13 

penalty IV  14 

ROTATION  OF  WATER— 

persons  entitled  to  use  of  water  from  the  same  ditch,  etc., 

may  agree  for  ....          ....  XI  i 

agreement  may  be  for  any  season  or  part  of  season XI          1-2 

any  number  of  consumers  of  same  ditch,  etc.,  may  agree  in 
writing  for,  but  not  in  such  manner  as  to  diminish  sup- 
ply of  other  consumers XI  2 

proprietors  of  ditches  from  same  stream  may  agree  for  b}-  con- 
sent in  writing  of  consumers  from  .  .  XI  3 

but  not  in   such   manner  as  to  diminish  suppty  of    - 

water  of  consumers  from  other  ditches,  etc  .   .    .  XI  3 

agreement  for  to  be  delivered  to  superintendent  of  ditch,  etc.          XI  4 

superintendent  to  observe  agreement  for XI    .          4 

agreement  for  between  proprietors  of  ditches,  etc.,  to  be  de- 
livered to  state  engineer  for  approval XI  5 

not  to  approve  if  manifestly  injurious XI  5 

may  retract  approval  or  prescribe  conditions    ....  XI  5 


214  INDEX. 

ART.  SEC. 

ROTATION  OF  WATER— CONTINUED— 

rehearing  allowed  .   * XI             6 

proceedings  thereon XI             6 

application  to  court  against XI             6 

agreement  for  not  to  impair  rights  of  incumbrancers  .   ..."  XI             7 

or  rights  of  parties  thereto  as  against  other  persons  .  XI             7 
agreements  for  more  than  one  season  to  be  recorded  in  office 

of  recorder XI             8 

SEEPAGE— 

water  not  to  be  turned  into  ditches  for  domestic  use  when 

would  result  in  unreasonable  loss  by I             6 

such  water  may  be  appropriated II             i 

no  vested  right  acquired  by  appropriation  of  as  against  pro- 
prietors of  works II             4 

ascertainment  of  where  waters  carried   in  ditch  of  another 

proprietor , Ill             4 

or  in  natural  stream Ill             5 

waters  part  of  natural  stream II             i 

STATE'S   ATTORNEY— 

See  adjudication. 

appointment  of VIII           19 

not  to  be  interested  in  ditch,  etc.,  or  consumer  of  water  there- 
from, or  counsel  or  attorney  for  proprietors  ...'....  VIII           20 

duties  of VIII      23-24 

may  be  removed  by  district  court .   .  VIII           29 

may  interpose  exceptions  to  report       VIII           24 

compensation,  how  apportioned  and  paid VIII           52 

accepting  of  appointment  being  disqualified VIII           53 

purchase  of  interest  in  works  or  stock  of  corporation  or 
accepting  employment  of  proprietor  during  continuance 

in  office;  penalty VIII            53 

willfully  refusing  to  perform  any  duty  required  of  him,  des- 
troying or    suppressing   any    deposition   or    document; 

penalty VIII            53 

conniving  at  any  false  claim;  penalty .t  .   .   .   .  VIII           53 

STATE  ENGINEER— 

to  examine  plans,  etc.,  of  reservoirs IV  1-2 

file  and  preserve  same IV  2 

appeal  to  or  from  order  of  water  commissioner  for  repairing 

or  renewing  head-gate IV  6 

may  order  rating  flume  constructed  in  any  ditch IV  6 

to  be  permitted  to  pass  over  private  lands  in  discharge  of  his 

duties IV  17 

to  be  appointed  by  governor V  i 

term  of  office,  four  years V  i 

qualifications  of V  i 

oath  and  bond V  2 

secretary  of  state  to  provide  office,  furniture,  instruments, 

stationery,  etc V  3 

seal  of V  4-5 

seal  forged,  counterfeit,  or  improper  using  of 6 

salary V  7 

to  keep  account  of  all  expenses  and  expenditures V  8 

to  purchase  material  necessary,  etc.,  and  dispose  of  same 

when  no  longer  needed V             9 


•J 1 f > 


tu  Imvr  Kfiu-i.t;  .iver- 

vater  for  all 

purposes;    may  require  advice  of  attoi:  ..1;    to 

keep  record  of  all  measurements  and  reports  and  deliver 
same  to  successor  in  office;  take  observations  of  daily 
mean 'discharge  of  principal  streams  and  keep  record 
thereof;  collect  information  touching  rain-fall,  etc.,  and 
othermatters;  to  give  his  counsel  zind  services  toany  other 

officer,  etc  ,  of  the  state V  10 

to  appoint  assistant  state  engineer  and  revoke  appointment; 

responsible  for  their  misconduct V  10 

to  use  cubic  foot  in  measurement  V  12 

to  appoint  irrigation  engineers  and  revoke  appointments  .   .  V  14 

to  examine  applicants 14 

to  audit  and  apportion  accounts  of  superintendent  of  irriga- 
tion .  .  V  19 

to  approve  regulations  prescribed  by  superintendent  of  irri- 
gation.    V  21 

appeals  to,  from  orders  or  regulations  of  superintendent  .   .  V  22 

notice  of  hearing  and  proceedings  in  such  appeal V  22 

may  visit  works  of  parties  interested V  22 

courts  may  give  relief  against  acts  of V  23 

no  injunction  to  be  allowed  against  without  notice  .    .  V  23 

costs  not  to  be  taxed  against  unless,  etc.  .   .  V  23 

district  attorney  to  defend V  23 

to  audit,  apportion  and  allow  accounts  of  water  commissioner  V  26 
to  appoint  assistant  water  commissioners  and  audit  and  ap- 
prove their  accounts                    V  27 

to   fix  penalty  in  bond  of  water  commissioner  and  approve 

sureties ...  V  29 

to  keep  record  of  bond;  certified  copy  to  be  evidence      .  V  30 

to  prepare  register  of  priorities  and  tabte  of  priorities  and 
transmit  copies  to  superintendent  of  irrigation  and  water 

commissioners V  34 

to  enter  therein  all  supplements  and  amendments;  to  distrib- 
ute water  appropriated  for  other  purposes  than  iriigation, 
or  where  no  decree  hath  been  made  according  to  the  best 

information  accessable  to  him      .          V  40 

to  furnish  superintendent  of  irrigation  plats  of  the  ditches, 

etc..  in  each  water  district V  41 

to  transmit  annually  to  superintendent  of  irrigation,  blanks 

for  reports .   .    .    .  .    .  V  42 

may  require  of  superintendent  of  irrigation  and  water  com- 
missioners reports  as  to  any  matter ...  V  43 

to  preserve  reports  of  water  commissioners  and  superintend- 
ents of  irrigation  .  V  44 

report  to  governor  thirty  days  prior  to  each  session  of  general 

assembly      V  44 

not  liable  in  damages  unless  guilty  of  corruption,  etc  .   ...  V  47 
to  issue  printed  instructions  as  to  rating  flumes,  measure- 
ment and  rating  of  ditches,  etc.    .    .% VIII  5 

to  prescribe  formula  for  estimating  capacity VIII  5 

to  cause  blanks  for  notes  of  survey  and  blank  sheets  for  maps 

to  be  delivered  to  assistants  and  deputies VIII  8 

to  cause  maps  and  notes  of  survey  to  be  examined;  to  endorse 

his  approval  if  correct   .   .    .    .    '  VIII  9 

to  preserve  the  same  in  his  office VIII  9 

or  return  for  correction VIII 


216  INDEX. 

ART.  SEC. 

STATE   ENGINEER— CONTINUED— 

to  prepare  index  of  surveys  of  ditches,  etc VIII  10 

ami  copies  of  map  and  field  notes  of  each  ditch,  etc  .  VIII  n 

and  transmit  the  same  to  clerk  of  district  court VIII  n 

to  examine  certificates  of  measurement  and  rating VIII  12 

if  approved,  transmit  one  copy  to  the  clerk  of  district  court  .  VIII  12 

if  disapproved,  to  return  to  superintendent  of  ditch  .  VIII  12 

proceedings  on  return.  ....              VIII  12 

estimate  of  capacity  allowed  in   lieu  of  measurement  and 

rating VIII  12 

to  furnish  blank  forms  for  statements  as  to  artesian  wells.  .  XII  5 
to  fix  reasonable  time  for  completion  of  works,  and  applica- 
tion of  water IV  20 

SUBTERRANEAN   WATERS— 

subject  to  appropriation XII  i 

percolating  waters  supplj-ing  subterranean  channel  not  to  be 

diverted,  etc XII  i 

proprietors  of  lands  ma}-  nevertheless  excavate  for  cellars  or 

operate  mines  or  quarries  or  excavate  drains XII  i 

proprietors  of  land  may  sink  wells  and  collect  percolating 

waters  XII  i 

naturally  discharging  into  superficial  stream  not  to  be  appro- 
priated to  prejudice  of  prior  appropriator  of  stream  .  .  .  XII  i 

SUPERINTENDENTS  OF  DITCHES,  ETC.— 

proprietors  of  ditch  to  appoint V  35 

and  certify  name  and  address  to  state  engineer  ...  IX  45 

process  may  be  served  upon IX  45 

name  and  address  to  be  certified  to  water  commissioner    .   .  IX  45 

name  and  address  of  successor  to  be  certified,  etc IX  46 

to  assist  person  appointed  by  state  engineer  or  district  court 

in  rating  works  .   .   .   .* IV  16 

extorting  unlawful  bonus  or  royalty IX  5 

to  measure  water  to  consumers IX  9 

penalty  for  neglect  . IX  10 

to  distribute  water  according  to  agreement  for  rotation    ...  XI  4 

SUPERINTENDENT  OF   IRRIGATION— 

to  institute  suits  to  restrain  unnecessary  retention  or  waste 

of  waters  by  towns  and  cities I  10 

appeal  to  from  order  of  water  commissioner  for  repairing  or 

renewing    head-gate  ...              ...  IV  6 

to  be  permitted  to  pass  over  private  lands  in  discharge  of  his 

duties .   .  IV  17 

appointment  of  and  term  of  office V  17 

vacancies  in  office  of V  17 

oath  and  bond V  18 

*    compensation    of V  19 

to  keep  account  of  expenditures  .   .          V  19 

to  be  allowed  on  order  and  certificate  of  state  engin- 
eer and  paid  by* counties  .   .           ...           ....  V  19 

state  engineer  not  to  allow  manifestly  false  charges V  19 

to  control  water  commissioners                       V  20 

to  be  under  supervision  of  state  engineer  ....           ....  V  20 

to  distribute  water  in  accordance  with  decrees V  20 

to  make  regulations  for  securing  fair  distribution  of  water  .  V  21 

may  call  out  water  commissioners  at  any  time V  20 


I:D— 

may  discharge  duties  »f  \v  iu-r  i-.unnn--  \'           20 

con: '                                                                      V             23 

no  injunction  t                              .Kaiti-t  without  notice     ....  V             23 

costs  not  to  be  taxed  against,  unless,  etc V            23 

rtet  attorney  to  <!eien.i v          23 

to  assume  duties  whenever  directed  by  state  engineer,  or 

when  first  water  commissioner  called  out V           23 

to  continue  until,  etc V            24 

governor  may  remove    .   .       .   .              V 

to  have  powers  of  peace  officer 

may  arrest   any  person  opening  head-gates,  etc.,    without 

authority  ...       32 

to  be  furnished  with  table  of  priorities  by  state  engineer   .   .  V           34 

to  return  same  to  state  engineer  when  required,  etc  .  35 

no  claim  of  priorities  to  be  regarded  unless  set  forth  in  tables  V           34 

to  distribute  water  according  to  table  of  priorities 36 

but  only  to  the  extent  needful V      35~36 

to  close  down  head-gates 36 

but  only  if  thereby  the  water  may  pass  to  ditch  hav- 
ing priority  of  right 36 

to  preserve  all  reports  of  water  commissioner V           38 

to  ascertain  what  ditches,  etc.,  are  not  receiving  their  supply 
and  cause  water  commissioner  to  close  head-gate  of  ditch 

receiving  excess V           38 

but  not  unless  the  water  can  be  given  to  ditch  having 

priority 38 

to  tsansmit  plats  to  water  commissioner V           41 

to  note  on  plats  all  corrections  necessary V           41 

to  return  plats  to  state  engineer  .   .                 V           41 

to  transmit  to  state  engineer  reports  of  the  water  commis- 
sioners with  suggestions  for  remedying  defects  in  the 

law  ....           V           43 

to  report  to  state  engineer  upon  any  matter  required    ....  43 
to  turn  over  to  successor  all  plats,  instructions,  tables  of 

priorities,  keys  of  head-gates,  etc V           43 

not  liable  in  damages  unless  guilty  of  corruption,  etc  ....  47 

TRANSFERS— 

water  rights  may  be  assigned  or  place  or  purpose  of  use 

changed VI  i 

without  impairing  priority  or  right VI  i 

one  of  several  proprietors  not  to  divert  water  into  other  works  VI  i 

to  be  in  writing ,  .   .   .  VI  2 

to  take  eftect  from  filing  for  record VI  3 

place  or  manner  of  use  to  be  certified  and  certificate  recorded  VI  4 

fees  of  clerk  for  recording  . VI  7 

proprietors  of  ditch  may  cause  water  to  be  carried  in  another  t 

ditch  without  loss  of  priority IX  26 

UNLAWFUL  INTERFERENCE  WITH   WORKS— 

unlawful  raising  of  head-gate  of  ditch  or  gate  of  lateral 
whereby  offender  is  supplied,  or  lowering  gate  whereby 
other  persons  are  supplied,  willfully  preventing  any  other 
person  from  receiving  lawful  supply,  cutting  and  break- 
ing down  head-gate  or  gate  of  any  lateral,  or  breaking  or 
throwing  down  embankments  or  other  part  of  works  ; 
penalty  .  ,  XIII  i 

28 


218 


INDEX. 


UNLAWFUL  INTERFERENCE  WITH   WORKS— CONTINUED— 

second  offense   .   .   .' XIII  -2 

water  flowing  unlawfully  on  two  occasions  within  thirty 
days,  to  the  fields,  etc.,  of  any  person,  prima  facie  evi- 
dence that  subsequent  improper  diversion  thereof  was 
procured  by  the  person  to  whose  works,  fields,  etc.,  water 

improperly  diverted XIII  3 

provisions  of  the  criminal  code  not  repealed XIII  4 

WASTE— 

or  use  in  excessive  quantity  prohibited II  3 

persons  guilty  of,  liable  to  fine II  4 

and  for  all  damages IV  15 

WASTE  GATES— 

to  be  constructed  on  order  of  state  engineer  ...'•....  IV  8 

WASTE  WATER— 

to  be  discharged  into  ditch  next  in  priority IV  8 

not  without  consent  of  proprietors  thereof IV  8 

not  so  as  to  disturb  the  order  of  priority IV  8 

WATER  COMMISSIONERS— 

to  institute  suit  to  restrain  city  or  town  from  waste  or  un- 
necessary accumulation  of  water I  to 

to  open  the  gates  of  reservoir  detaining  flood-water  previously 

appropriated  ...       II  7 

may  order  head-gate  in  works  heretofore  constructed  to  be 

renewed,  repaired,  etc 'IV  6 

appeal  allowed  from  order  of  in  such  cases,  to  superintendent 

of    irrigation IV  6 

to  have  one  key  of  head-gate  ....  IV  6 

may  exclude  water  from  ditch  for  failnre  to  construct    or 

maintain  head-gate IV  12 

to  fill  ditch  for  purpose  of  rating  whenever  required,  etc.  .   .  IV  16 

to  be  permitted  to  pass  over  private  lands  in  discharge  of  his 

duty IV  17 

to  close  gates  after  passing IV  17 

courts  may  give  relief  against  acts  of .   .          .          V  23 

no  injunction  to  be  allowed  against  without  notice  ...  V  23 

costs  not  to  be  taxed  against  unless,  etc V  23 

district  attorney  to  defend V  23 

appointment  of,  to  be  revoked  by  state  engineer;  to  be  resi- 
dent of  district;  term  of  office  of;  compensation  of;  to  keep 
just  and  true  accounts;  compensation,  how  allowed,  ap- 
portioned and  paid ...  V  26 

to  report  to  superintendent  of  irrigation  when  called  out  and 

when  services  no  longer  required V  25 

oath  and  bond       V  29 

vacancies  in  office  to  be  filled  by  governor      V  28 

the  governor  may  remove V  28 

not  to  assume  duties  until  called  out  by  superintendent  of 
irrigation  or  superintendents  of  two  or  more  ditches,  etc., 
not  to  receive  compensation  after  necessity  for  services 

ended         V  3r 

to  have  powers  of  peace  officer    .       .       V  32 

may  arrest  any  person   opening:  head-gates,   etc.,    without 

authority V  32 

to  be  furnished  with  table  of  priorities  by  state  enginer  ...  V  34 


ART. 

\VATKR    COMM. 

to  icturn  same  to  state  engineer  wheu  required V  34 

no  claim  of  priority  to  be  regarded  unless  set  forth  in  tables  V  34 

to  distribute  water  according  to  table  of  priorities V  36 

but  only  to  extend  needful V      35-36 

to  close  down  head-gates V  36 

but  only  if  thereby  water  may  pass  to  ditch  having  priority 

of  right V  36 

to  report  weekly  to  superintendent  of  irrigation  amount  of 
water  necessary  for  and  flowing  in  the  district,  whether 

increasing  or  decreasing V  36 

the  ditch  latest  in  priority  supplied,  the  amount  flow- 
ing out  of  district,  etc V  37 

not  required  to  abandon  other  matters,  etc.,  in  order  to  report  V  37 

to,  reserve  plats  of,  etc.,  and  return  the  same  with  corrections 

to  superintendent  of  irrigation V  41 

to  report  annually  to  superintendent  of  irrigation  as  to  each 
ditch,  number  of  days  water  carried,  average  amount, 
number  of  acres  irrigated,  number  of  days  employed  by 

him,   etc V  43 

to  turn  over  to  successor  all  plats,  instructions,   tables   of 

priorities,  keys  of  head-gates,  etc V  43 

not  to  quit  his  office  without  authority  of  state  engineer  .   .   .  V  43 

to  preserve  records  of  superintendents  of  ditches 45 

not  liable  in  damages  unless  guilty  of  corruption,  etc  ....  47 
to  serve  citations  on  owners  of  ditches  upon  petition  for  ad- 
judication of  priorities VIII  15 

WATER   DISTRICTS— 

defined VIII  12-78 

other  water  districts  may  be  formed  by  consolidation    or 

division VIII  80 

waters  diverted  from  stream  on  one  side  for  irrigation,  and 
alterward  carried  across  stream,  all  lands  so  irrigated  in 

district  wherein  is  the  head  of  the  ditch  .- VIII  79 

incorporation  of,  on  petition  of  thirty  electors;  governor  to 

appoint  commission  to  hold  election XV  i 

secretary  to  give  notice  to  commissioners XV  2 

commissioners  to  organize  and  appoint  place  of  meeting  .   .  XV  2 

majority  may  exercise  powers  of  commission XV  3 

less  number  may  adjourn  from  day  to  day XV  3 

meeting  of  commission  may  be  called  by  president  or  two 

members XV  3 

notice;  how  served XV  3 

commission  to  fix  places  of  election  in  each  precinct   ....  XV  4 
precinct   to   be   the   same    as  at   last   general    election    in 

counties XV  4 

commission,  fix  day  of  election,  appoint  judges,  and  cause 

notice  to  be  published  and  posted XV  4 

clerk  of  commission  keep  record  of  proceedings XV  5 

county  clerk  to  deliver  ballot  box  to  judges XV  6 

judge  not  attending,  place  filled  by  electors  present XV  6-7 

judges  to  appoint  clerks  of  election XV  8 

judges  and  clerks  to  be  sworn XV  9 

general  law  to  control  as  to  receipt  of  ballot,  poll-list,  chal- 
lenge of  voters  and  other  matters  of  detail XV  9 

powers  of  judges  to  be  the  came XV  9 

polls,  when  to  be  opened XV  10 


220  INDEX. 

ART.  SEC. 

WATER  DISTRICTS— CONTINUED— 

canvass  of  votes  and  certificate  thereof XV  n 

certificate  and  list  of  voters  and  tally  sheets  to  be  transmitted 

to  clerk  of  commission          XV  n 

ballots,  poll  list  and  tally  sheets  with  ballot-boxes  to  be  re- 
turned to  county  clerk  .  XV  n 

form  of  ballots XV  12 

commission  to  canvass  votes  .   .       XV  13 

form  of   certificate XV  13 

copy  to  be  transmitted  to  secretary                       XV  13 

original  returns  and  record  of  commission  to  be  delivered  to 

clerk  of  board  of  directors  ...              XV  13 

proclamation  of  the  result  to  be  issued XV  14 

five  directors  to  be  appointed  for  district  .  • XV  14 

compensation  of  commissioners,  judges  and  clerks  of  elec- 
tions, how  ascertained,  apportioned  and  paid  XV  16 

water  district  to  be  a  corporation,  name  of            XV*  17 

board  of  directors  to  assemble  and  appoint  president,  treas- 
urer and  clerk  and  adopt  by-laws XV  18 

stated  meetings  of XV  18 

election  of  board  ..  .  • XV  19 

who  eligible .      .       ....          .   .  XV  19 

members  elected  to  cast  lots  to  determine  length  of  term      .  XV  20 

election  to  fill  one  vacancy  annually  thereafter      XV  20 

board  of  directors  may  adopt  by-laws XV  21 

powers  of  board  of  directors      XV  21 

board  ma5'  fill  vacancies             XV  22 

person  appointed  to  hold  until  next  election XV  22 

violation  of  by-laws  of  water  district  may  be  prosecuted  be- 
fore a  justice  of  the  peace  .  .  XV  23 

fine  not  to  exceed  three  hundred  dollars XV  22-23 

offender  may  be  imprisoned  until  payment XV  24 

by-law  imposing  fine  to  be  published,  and  until  not  of  effect  XV  24 

by-laws,  how  proved XV  25 

disincorporation  of XV  33 

directors  in  office  to  remain  for  disposing  of  properties  and 

discharging  debts XV  35 

disincorporation  not  to  discharge  any  debt,  nor  exonerate 

properties  in  district  from  taxation XV  33 

directors  to  continue  to  annually  levy  taxes  for  discharging 

debt XV  35 

may  appoint  officers    for    assessing    and    collecting 

taxes ...              XV  35 

moneys  in  the  treasury  not  necessary  may  be  loaned  out  on 

first  mortgages  of  real  estate  within  the  district XV  36 

compensation  of  directors  ...                        XV  37 

no  loan  to  be  made  to  member  of  board  of  directors,  etc  .  .  XV  37 

treasurer  misappropriating  funds  of ;  penalty XV  39 

property  of  inhabitants  not  to  be  taken  in  execution   for 

debts  of  water  district XV  40 

WATER   DIVISIONS— 

defined VIII  i-io 

waters  diverted  from  drainage  basin  of  one  to  another  to  be 
deemed  part  of  water  division  from  which  taken  in  re- 
spect of  the  adjudication  of  rights  and  priorities  and 

control  of  diversion  . VIII  i  r 

in  respect  of  distribution  and  administration  among  the  con- 
sumers within  water  division  and  water  district  into 

which  first  carried VIII  n 


INDi  "JlM 


\VATKK    DIVISIONS— CONTIMI:I> - 

m*y  become  incorporated 26 

manner  of  appointment  of  directors XV  37 

may  .t^u-e  im  purchase  of  rights  of  prior  appropriator  in 

lower  parts  of  diritioa,  etc xv  37 

may  borrow  money  for  affecting  such  purchase  and  issue 

bonds XV  28 

only  by  irrepealable  by-laws  providing  for  levy  of  tax,  etc.  .  XV  28 

limit  of  indebtedness  which  may  be  contracted XV  28 

no  such  agreement  to  be  entered  into  until  approved  by  two- 
thirds  of  the  tax-payers XV  28 

directors  may  enact  by-laws  for  regulating  election XV  29 

condemnation  in  case  of  inability  to  agree XV  30 

directors  proposing  to  purchase  property  or  prior  right,  etc., 

to  file  certificate  in  office  of  state  engineer  .  ..••'..  XV  31 
subsequent  appropriations  during  two  years  to  be  subject  to 

the  rights  of  the  proprietors  of  the  works  purchased  .  .  XV  31 
board  of  directors  to  distribute  water  so  obtained  from  time 

to  time,  etc XV  32 

not  to  lease  out  or  sell  the  right  so  acquired XV  32 

disincorporation  of XV  34 

directors  in  office  to  remain  for  disposing  of  property  and 

discharging  debt XV  35 

disincorporatiou  not  to  discharge  any  debt  or  exonerate  the 

properties  in  the  division  from  taxation XV  33 

directors  to  continue  to  annually  levy  tax  for  discharging 

debt XV  35 

may  appoint  officers  for  assessessing  and  collecting  taxes  .  XV  35 
moneys  in  treasury  not  necessary  to  be  used  to  be  loaned  out 

on  first  mortgages  of  real  estate  in  divisions XV  36 

no  loan  to  be  made  to  member  of  board,  etc  ....  .  .  XV  36 

compensation  of  directors  ...  XV  37 

money  not  to  be  drawn  from  treasury  save,  etc :  .  XV  38 

property  of  inhabitants  not  to  be  taken  in  execution  for 

debts  of XV  40 

improper  use  or  appropriation  of  moneys  by  treasurer  .  .  XV  39 

WATER  RIGHTS- 

places,  purposes  or  manner  of  use  may  be  changed II  4 

not  to  injury  of  any  other  appropriator II  4 

may  be  assigned,  or  place  or  purpose  of  use  changed  ....  VI  i 

without  impairing  priority  of  right VI  i 

one  of  several  proprietors  not  to  divert  water  into  other  works  VI  i 

to  be  deemed  real  estate     ...                    VI  2 

not  to  be  conveyed,  etc.,  save  by  writing .  .  VI  2 

deeds  to  take  effect  from  filing  in  office  of  recorder VI  3 

change  of  place  or  manner  of  use  to  be  certified  and  recorded  VI  4 

appurtenant  to  lands  where  used VI  5 

to  pass  by  deed  of  lands  unless  reserved  or  excepted VI  5 

proprietors  of  ditches  to  make  certificate  of  those  entitled  to  VI  6 

and  record  same             VI  6 

fees  of  clerk VI  7 

certificate  prima  facie  evidence VI    •         8- 

any  person  aggrieved  by  such  certificate  or  omissions  of,  may 

bring  suit VI  9-10 

parties  to  suit VI  u 


WELLS- 


proprietors  of  lands  may  sink  wells  and  appropriate  perco- 
lating waters XII 


PROPOSED  MI-NT  TO 

A    BILL 

FOR 

AN  ACT  TO  SUBMIT  TO  THE  QUALIFIED  ELECTORS  OF   THE  STATE  OF 
COLORADO    AMKNUMHNTS   TO  THE   SIXTEENTH   ARTICLE   OF  THE 

CONSTITUTION. 

Be  it  enacted  by  the  General  Assembly  of  the  State  of  Colorado: 

SECTION  i.  There  shall  be  submitted  to  the  quali- 
fied electors  of  the  State  of  Colorado  at  the  next  general 
election  for  members  of  the  General  Assembly,  for  their 
approval  or  rejection,  the  following  amendment  to  the 
Constitution  of  the  State,  which,  if  approved  by  a 
majority  of  those  voting  thereon,  shall  become  part  of 
the  Constitution,  that  is  to  say,  "Section  six  of  Article 
sixteen  of  the  Constitution  of  the  State  of  Colorado 
shall  be  amended  to  read  as  follows:  'Section  6.  The 
right  to  divert  the  unappropriated  waters  of  any  natural 
stream  to  beneficial  use  shall  never  be  denied.  Priority 
of  appropriation  shall  give  the  better  right.  The  legis- 
lature shall  enact  laws  for  governing  the  distribution  of 
water  and  for  preventing  extravagance  and  waste  in  the 
use  thereof."' 

SEC.  2.  Each  elector  voting  at  said  election  and  de- 
sirous of  voting  for  or  against  the  proposed  amendment, 
shall  deposit  in  the  ballot-box  a  ticket,  whereon  shall 
be  printed  or  written  the  words,  uFor  the  amendment," 
or  the  words,  "Against  the  amendment." 

SEC.  3.  The  votes  cast  for  the  adoption  or  rejection 
of  said  amendment  shall  be  canvassed,  and  the  result 
determined  in  the  manner  provided  by  the  laws  for  the 
canvass  of  votes  for  Representatives  in  Congress. 


MINORITY  REPORT. 


To  the  HON.    JAMKS    RICE, 

Secretary  of  State  : 

::  —  r.fing  convinced — 

/•>V.sY — That  right  and  justice  and  the  spirit  of  the 
Constitution  imperatively  demand  that  the  sale  or  lease 
of  the  waters  of  the  streams,  or  any  traffic  therein,  or 
any  charge  therefor,  whatsoever,  save  the  lawful  charge 
for  the  carriage  thereof,  should  be  prohibited  by  law. 

Second — That  in  order  to  an  effectual  'judicial  deter- 
mination of  the  rights  of  the  several  persons  entitled  to 
.divert,  convey,  store  or  use  the  waters  of  the  streams, 
and  in  order  to  a  satisfactory  administration  of  such 
waters  by  the  officers  of  the  State,  the  law  should  clearly 
distinguish  between  a  right  of  appropriation,  a  right  of 
carriage  and  a  right  to  the  use  of  water. 

Third — That  water  for  "domestic  purposes,"  as  the 
phrase  is  used  in  the  Constitution,  should  not  be  inter- 
preted or  defined  so  as  to  include  water  for  irrigation  to 
any  extent  whatever. 

Fourth — That  water  applied  to  the  irrigation  of  land 
or  to  the  operation  of  any  mine  or  of  any  mill,  smelter, 
manufactory  or  other  works,  should  be  made  an  appur- 
tenance of  the  land,  mine,  mill,  smelter,  manufactory  or 
works  to  the  irrigation  or  operation  of  which  such  water 
is  applied. 

And  having  presented  these  views  without  their  hav- 
ing received  favor  in  the  eyes  of  a  majority  of  the  Com- 
mission, it  devolves  upon  me  to  present  to  you,  for 
submission  to  the  next  General  Assembly,  a  report 
relative  to  the  above  matters,  and  other  matters  of 
minor  importance  wherein  I  differ  with  a  majority  of 
the  Commission.  This  I  do  in  the  form  of  a  bill,  in 
which  such  matters  of  difference  are  set  forth  in  full,  and 
those  matters  upon  which  there  is  no  difference  of  opin- 
ion are  set  forth  by  reference. 

I  am,  sir,  respectfully, 

Your  obedient  servant, 

J.   S.  GREENE. 


Minority  Report,  in  the  Form  of  a  Bill. 


ARTICLE  I. 

ilv    AlTKni'RIATION,   CARRIAGE   AND    EMPLOYMENT    OP    WATP.R. 

SECTION  i.  The  lawful  diversion,  conveyance,  reten- 
tion or  storage  of  the  water  of  natural  streams  or  the 
water  flowing  in  well  defined  subterranean  channels,  for 
application  to  beneficial  uses  within  the  State,  shall  be 
deemed  and  taken  to  be  a  carriage  of  water.  Any 
person,  association  or  corporation  effecting  such  a  car- 
riage of  water  shall  be  deemed  a  carrier  of  water  and 
"the  right  to  divert,  convey,  retain  or  store  such  water, 
for  application  to  a  beneficial  use  within  the  State,  shall 
be  taken  and  deemed  to  be  a  right  of  carriage  of  water. 

SEC.  2.  Any  person,  association  or  corporation  effect- 
ing such  a  carriage  of  water  by  means  of  any  ditch,  con- 
duit, reservoir  or  other  works  shall,  when  such  water  is 
conveyed  or  stored  in  whole  or  in  part  for  hire,  or  to  be 
applied  to  a  beneficial  use  in  whole  or  in  part  by  others, 
"be  deemed  in  relation  to  such  water  and  works  to  be  a 
public  carrier  of  water. 

SEC.  3.  The  lawful  application  to  a  beneficial  use 
of  any  of  the  water  diverted,  conveyed,  retained  or 
stored  under  any  right  of  carriage  of  water  shall  be 
deemed  and  be  taken  to  be  an  employment  of  water. 
Any  person,  association  or  corporation  effecting  such  an 
employment  of  water  shall  be  deemed  a  consumer^  em- 
j)loyer  or  user  of  water  as  the  words  "user,"  "con- 
sumer" and  "employer"  are  used  in  this  act. 

SEC.  4.  The  definitions  given  in  this  act  of  the 
words  "carriage"  and  "employment"  shall  not  be  so 
taken  or  construed  as  to  limit  or  affect  the  judicial  defini- 
tion of  a  constitutional  "appropriation  of  water"  which 
includes  both  the  carriage  and  employment  of  water. 


MINORITY   REPORT. 

SEC.  5.  Every  carrier  of  water  shall  be  entitled  to 
divert,  convey  or  store  water  as  of  and  from  the  date  of 
carriage  thereof,  determined  as  prescribed  in  this  act, 
subject,  however,  to  the  rights  of  those  entitled  to  the 
employment  of  the  water  so  diverted,  conveyed  or  stored.* 

SEC.  6.  The  extent  to  which  any  person  may  divert, 
convey  or  store  the  water  of  any  Water  Division  of  the 
State,  sought  to  be  diverted,  conveyed  or  stored  under  a 
right  of  carriage  of  water  by  him  enjoyed,  shall  not 
exceed  the  extent  to  which  such  water  may  be  needed 
for  the  uses  to  which  the  same  shall  have  been,  or  shall 
be,  applied  within  a  reasonable  time  from  the  date  of 
carriage  thereof,  or  thereafter  and  before  the  initiation  of 
a  right  of  carriage  of  such  water  by  some  other  person. 

SEC.  7.  Any  person  having  acquired  a  right  of  car- 
riage of  water  to  the  extent  prescribed  in  the  preceding 
section,  shall  be  entitled  to  thereafter  annually  divert, 
convey  or  store  such  water  so  long  as  the  same  is  with  rea- 
sonable continuity  applied  to  beneficial  uses.  The  neglect 
or  failure,  however,  by  any  person  so  entitled,  to  divert, 
convey  or  store  any  part  of  such  water  for  four  years 
consecutively  shall  be  deemed  an  abandonment  of  the 
right  of  carriage  of  such  part  of  such  water,  except 
where  such  person  is  prevented  from  effecting  the  car- 
riage thereof  by  overpowering  causes,  or  such  water  is 
not  needed  by  reason  of  excessive  or  unusual  rain-fall. 

SEC.  8.  Priority  of  date  of  employment  shall  give 
the  better  right  to  the  use  of  water  among  the  consumers 
of  water  diverted,  conveyed  or  stored  under  a  right  of 
carriage  of  one  date,  saving  the  rights  of  the  consumers 
of  such  water  for  any  preferred  use ;  Provided,  however, 
That  in  the  distribution  of  the  water  diverted,  conveyed 
or  stored  under  a  right  of  carriage  of  one  date,  those 
consumers  enjoying  the  earliest  dates  of  employment 
of  such  water,  to  the  number  whose  needs,  for  the 
uses  to  which  such  water  was  applied  in  effecting  an 
employment  thereof,  may  with  reasonable  efficiency 


MINORITY    KI-I'ORT.  '2'.\  I 

and  sulTiciency  be  supplied  "by  the  water  customarily 
conveyed  or  stored  under  such  right  of  carriage,  shall,  in 
times  of  scarcity,  suffer  a  proportional  diminution  of  the 
water  to  the  use  whereof  they  are  entitled. 

SKC.  9.  The  consumers  of  the  water  of  any  Water 
Division^  conveyed  or  stored  under  a  right  of  carriage 
of  one  date  shall,  as  against  the  consumers  of  such  water 
conveyed  or  stored  under  a  right  of  carriage  of  a  differ- 
ent date,  be  entitled  to  the  enjoyment  of  such  water  in 
accordance  with  the  date  of  carriage  of  the  water  by 
them  employed,  and  without  reference  to  the  several 
dates  of  employment  of  water  enjoyed  by  such  several 
consumers. 

SEC.  10.  The  extent  to  which  the  water,  conveyed  or 
stored  under  any  right  of  carriage  of  water,  may  be  used 
under  any  right  of  employment  thereof  shall  not  exceed 
the  extent  to  which  such  water  may  be  needed  for  the 
uses  to  which  ,the  same  shall  have  been,  or  shall  be 
applied  within  a  reasonable  time  from  the  date  of 
employment  of  such  water,  or  thereafter  and  before  the 
initiatiation  of  a  right  of  employment  of  such  water  by 
some  other  person. 

SEC.  ii.  Any  person  who  shall  directly  divert  and 
convey  the  water  of  any  natural  stream  or  the  water 
flowing  in  any  well  defined  subterranean  channel  in 
whole  or  in  part  for  the  irrigation  of  his  own  lands  or 
the  operation  of  his  own  mine  or  of  his  own  mill,  man- 
ufactory or  other  works  of  like  character,  shall  be  enti- 
tled to  the  same  date  of  employment  of  water  for  such 
purposes  as  the  date  of  carriage  of  such  water;  Provided, 
Such  person  shall  apply  such  water  to  the  irrigation  of 
such  lands  or  the  operation  ot  such  mine,  mill,  manu- 
factory or  other  works  within  a  reasonable  time  from  the 
date  of  carriage  of  such  water. 

SEC.  12.  If  any  person  shall  make  application  in 
writing  to  any  public  carrier  of  water  lawfully  divert- 


'2:\i>  MINORITY   REPORT. 

ing,  conveying  or  storing,  6r  entitled  to  divert,  convey 
or  store,  any  unemployed  water,  setting  forth  the  extent  to 
\vhich  he  desires  to  apply  to  a  beneficial  use  or  beneficial 
uses  such  unemployed  water,  and  the  lands,  or  the  mine 
mill,  manufactory  or  other  works  to  the  irrigation  or  ope- 
ration of  which  he  desires  to  apply  such  water,  and  shall 
accompany  such  application  with  a  tender  of  the  lawful  or 
reasonable  rates  which  such  carrier  is  entitled  to  charge  for 
the  carriage  of  such  water,  such  person  shall  be  entitled  to 
the  use  of  such  water,  and  to  a  reasonable  time  in  which  to 
construct  necessary  laterals,  sub-laterals  or  other  works 
and  effect  an  employment  of  such  water,  and  the  date 
of  employment  of  such  water  may  be  taken  as  the  date 
when  such  application  and  tender  were  made  to  such 
carrier. 

SEC.  13.  Any  consumer  of  water  who  shall  for  three 
years  .consecutively  fail  to  apply  any  part  of  such  waters 
to  a  beneficial  use,  shall  be  deemed  to  have  abandoned 
his  right  to  the  employment  of  such  part  of  such  waters; 
Provided,  hoivever,  That  the  failure  of  any  consumer 
of  water  to  apply  any  part  of  the  water  to  the  use 
whereof  he  is  entitled  to  the  irrigation  of  his  lands  in 
any  season  when,  by  reason  of  unusual  or  excessive 
rain-fall,  such  irrigation  is  unnecessary,  or  when  by 
reason  of  injury  or  disability  from  sickness,  or  that  said 
person  is  prevented  from  the  cultivation  of  his  lands  or 
the  use  of  such  water,  by  imprisonment,  or  by  any  pro- 
hibitory process  of  the  law,  or  is  kept  out  of  his  lands 
or  the  works  or  place  in  respect  whereof  such  waters 
have  theretofore  been  used,  the  failure  or  omission  of 
such  person  to  apply  such  waters  to  a  beneficial  use  shall 
not  be  deemed  an  abandonment. 

SEC.  14.  In  the  event  that  any  consumer  of  the 
water  diverted,  conveyed  or  stored  under  any  right  of 
carriage  of  water  shall  abandon  any  part  of  the  water  to 
the  use  whereof  he  is  entitled,  or  his  right  to  the  employ- 
ment of  any  part  of  such  water,  the  right  of  employment 


MINORITY    KKI'ORT.  233 

of  the  water  so  abandoned  may  be  initiated  and  acquired 
my  person  proceeding  as  prescribed  in  section  12  of 
this  Article. 

SKC.  15.  Notwithstanding  anything  prescribed  in 
the  foregoing  sections  of  this  Article,  the  enjoyment  of 
every  right  of  carriage  of  the  water  of  any  Water  Divis- 
ion shall  be  subject  to  the  rights  of  those  entitled,  either 
as  carrier  or  consumer,  to  the  enjoyment  of  a  prior  appro- 
priation of  such  water,  and  to  the  rights  of  those  entitled 
to  effect  the  appropriation  of  such  water  for  any  prefer- 
red use.  And  the  date  of  appropriation  of  water  shall 
be  the  same  as  the  date  of  carriage  thereof. 


ADDENDUM. 

Insert,  after  the  word  rain-fall  in  the  gth  line  of 
Section  13,  the  words  "or  because  of  the  saturation  of 
such  lands  by  waters  seeping  or  wasting  from  any  ditch, 
conduit,  reservoir,  or  other  works  for  the  conveyance  or 
storage  of  water. " 

works  commenced  after  the  passage  of  this  act,  shall  be 
deemed  and  taken  to  be  the  day  of  commencement  of 
such  works  or  of  such  enlargement ;  Provided,  That 
within  ninety  days  after  the  commencement  or  such 
works  or  such  enlargement  the  person  effecting  or  de- 
siring to  effect  the  carriage  of  water  by  means  thereof 
shall  cause  maps  and  statements,  such  as  required 
by  the  twenty-fourth  section  of  .this  article,  to  be  filed 
as  therein  required;  and  the  commencement  of  any  such 
works  or  of  such  enlargement  shall  be  taken  to  be  the 
date  of  the  actual  commencement  of  the  construction  of 
such  works  or  enlargement  upon  the  ground  if  such  con- 
struction is  commenced  before  the  commencement  of 
the  survey  therefor,  otherwise,  the  commencement  of 

such  survey  shall  be  taken  to  be  the  date  of  commence- 
so 


I?o4  MINORITY   REPORT. 

ment  of  such  works  or  such  enlargement.  If  such  maps 
and  statements  be  not  filed  as  required  in  the  twenty- 
fourth  section  of  this  article  within  ninety  days  after  the 
commencement  of  such  works  or  such  enlargement, 
then  in  that  case  the  date  of  carriage  of  such  water  by 
means  of  such  works  or  such  enlargement,  shall  be 
deemed  and  taken  as  of  the  date  at  which  such  a  map  and 
statement  be  filed  in  the  office  of  the  State  Engineer  ; 
Provided,  That  then  or  within  a  reasonable  time  there- 
after, duplicates  of  such  map  and  statement  be  filed  in 
the  offices  of  the  county  clerks  of  the  several  counties 
wherein  the  said  works  are  proposed  to  be  constructed. 

SEC.  20.  Wherever  any  person,  subsequent  to  the 
twelfth  day  of  June,  A.  D.  1881,  and  before  the  nineteenth 
day  of  July,  A.  D.  1887,  commenced  the  construction  of 
any  ditch,  conduit,  reservoir  or  other  works  or  any  en- 
largement of  such  works,  for  the  conveyance  or  storage  of 
water  for  irrigation  merely,  of  a  carrying  capacity  of  more 
than  one  cubic  foot  per  second  of  time,  and  proceeded 
with  reasonable  diligence  in  such  construction  or  the 
work  of  such  enlargement,  his  date  of  carriage  of  such 
water  shall  be  deemed  to  be  the  date  of  commencement 
of  such  works  or  such  enlargement;  Provided,  That  such 
person  hath  heretofore  filed,  or  shall  file,  within  ninety 
days  after  the  passage  of  this  act,  and  cause  to  be  re- 
corded in  the  office  of  the  County  Clerk  of  the  county  or 
counties  in  which  such  ditch,  canal  or  feeder  is  situate; 
and  if  situate  in  any  Water  District,  then  in  the  office 
of  the  County  Clerk  of  each  county  into  which  such 
Water  District  mayextejid,  a  sworn  statement  in  writing 
showing  the  name  of  such  ditch,  canal  or  conduit,  or  of 
such  reservoir;  the  point  where  the  head-gate  thereof 
is  situated  (if  a  new  construction),  the  width  and 
depth  of  such  ditch,  canal  or  feeder,  the  carrying  capac- 
ity thereof  in  cubic  feet  per  second,  a  description  of  the 
line  thereof,  the  time  when  the  work  was  commenced, 
the  name  of  the  owner  or  owners  thereof,  and  a  map 


MINORITY    RKI'MKT. 

showing   the   route  of  such   ditch   or  conduit,  the   '. 
subdivisions  of   the   land,  with   proper  corners  and   dis- 
tances, if  on  surveyed  lands,  and,  in  case  of  an  enl<: 
ment,    the  depth,   width   and   carrying  capacity  of  the 
ditch  enlarged,  with  the  width  and  deptli  thereof  as  en- 
larged,   the   increased   carrying   capacity   of  the   same 
thereby  occasioned,   and  the  time  when  such  enlarge- 
ment was  commenced. 

SEC.  21.  Whenever  any  person  subsequent  to  the 
nineteenth  day  of  July,  A.  D.  1887,  and  before 
the  date  of  the  passage  of  this  act,  commenced 
the  construction  of  any  ditch,  conduit,  reservoir 
or  other  works  for  the  conveyance  or  storage  of 
water  for  irrigation  solely,  and  of  a  carrying  capacity 
greater  than  one  cubic  foot  per  second  of  time, 
the  date  of  carriage  of  water  by  means  of  such  works 
shall  be  deemed  and  taken  to  be  the  date  of  the  com- 
mencement of  such  works;  or  in  case  of  an  enlargement 
thereof,  as  the  date  of  the  commencement  of  such  en- 
largement; Provided,  That  maps  and  statements,  show- 
ing with  reference  to  such  ditch,  conduit,  reservoir  or 
other  works  or  such  enlargement  thereof,  the  point  of 
location  of  the  head-gate  of  such  ditch,  the  route  of  such 
ditch  or  conduit,  and  the  high-water  line  of  such  reser- 
voir, the  route  of  any  feeders  thereto  and  ditches  and 
canals  from  such  reservoir,  the  legal  subdivisions  of  the 
lands  upon  which  such  structures  were  built,  if  on  sur- 
veyed lands,  the  names  of  the  owners  of  such  lands,  so 
far  as  of  record  in  the  office  of  the  County  Clerk  of  the 
county  wherein  such  works  were  situate,  such  courses, . 
distances  and  corners  by  reference  to  legal  subdivisions, 
or  to  natural  objects  if  on  unsurveyed  lands,  as  may 
clearly  designate  the  location  of  such  structures,  showing 
also  by  such  statements  the  point  of  location  of  the  head- 
gate,  the  depth,  width  and  grade  of  such  ditch,  canal 
or  feeder,  the  carrying  capacity  thereof  in  cubic  feet  per 
second  of  time  and  the  capacitv  of  such  reservoir 


2;><>  MINORITY   REPORT. 

in  cubic  feet  when  filled  to  high-water  mark,  the  time 
of  commencement  of  work  on  such  structures  and 
increased  capacity  arising  from  such  enlargement,  as 
required,  by  the  act  of  the  General  Assembly  of  this 
State,  approved  April  20,  A.  D.  1887,  were  filed  with 
the  State  Engineer  and  the  County  Clerk  and  Re- 
corder of  the  county  wherein  the  head  of  such  works 
was  situate,  within  ninety  days  from  the  time  of  com- 
mencement of  such  work  or  such  enlargement;  other- 
wise such  date  of  carriage  shall  be  taken  as  of  and  from 
the  time  of  filing  such  maps  and  statements. 

SEC.  22.  Wherever  any  person  shall  heretofore 
have  constructed  any  ditch,  conduit,  reservoir  or  other 
works  carrying  less  than  one  cubic  foot  of  water  per 
second  of  time,  or  any  such  works  for  carrying  water 
not  solely  for  the  purpose  of  irrigation,  such  person 
shall  be  taken  and  deemed  to  be  entitled  to  the  carriage 
of  such  water,  as  of  and  from  the  commencement  of  such 
works,  which  shall  be  deemed  the  date  of  carriage  of  such 
water;  Provided,  Such  water  was,  within  a  reasonable 
time,  and  thereafter  with  reasonable  continuity,  applied 
to  beneficial  uses,  and  provided  that  maps  and  state- 
ments, such  as  required  by  the  twenty-fourth  section  of 
this  article,  be  filed  as  therein  required,  within  ninety 
days  from  the  passage  of  this  act. 

SEC.  23.  Any  person  using  the  water  of  any  natural 
stream  for  the  irrigation  of  any  land,  by  the  natural 
overflow  or  other  natural  operation  of  such  water,  shall 
in  case  the  deepening  or  changing  of  the  channel  of 
such  stream,  or  the  diminishing  of  the  supply  of  water 
therein  from  any  cause,  prevents  such  irrigation  there- 
from in  as  ample  a  manner  as  formerly,  be  entitled, 
when  proceeding  thereto  lawfully,  to  construct  a  dam  or 
other  works  in  such  stream  for  raising  the  water  thereof, 
or  to  divert,  convey  or  store  the  water  of  such  stream 
by  means  of  a  ditch  or  other  works,  and  to  apply  the 
same  to  the  irrigation  of  such  lands.  Such  person  shall 


MINORITY    KF.l'OKT. 

be  entitled  to  divert,  convey  or  store  and  apply  so  much 
of  the  water  of  such  stream  as  shall  with  the  natural 
overflow  or  operation  of  the  water  of  such  stream  which 
may  still  remain,  be  sufficient  to  irrigate  such  land  as 
fully  and  completely  as  before  such  dimished  overflow 
or  operation  took  place,  and  shall  be  entitled  to  the 
same  date  of  employment  and  the  same  date  of  carriage 
of  water  as  though  such  carriage  of  water  and  the  appli- 
cation hereof  had  been  made  by  means  of  such  works  at 
the  time  such  lands  were  first  irrigated  by  such  natural 
overflow  or  operation  of  such  waters;  Provided,  That 
such  lands  shall  have  been,  with  reasonable  continuity, 
utilized  as  meadow  lands  or  for  agricultural  purposes; 
And  provided  further,  That  such  diversion  and  applica- 
tion of  water  shall  have  been,  or  shall  be,  made  within 
a  reasonable  time  after  such  dimunition  of  the  overflow 
or  the  operation  of  the  water  of  such  stream. 

Sections  24  and  25  are  the  same  as  sections  18  and 
19,  of  Article  IV.  of  Majority  Report. 


ARTICLE   II. 

OF  THE  PURPOSES   AND   USES  TO   WHICH   THE  WATERS  OF  NATURAL 
STREAMS   MAY   BE   APPLIED. 

SECTION  i.  The  waters  of  natural  streams,  as  the 
phrase  "Natural  Streams"  is  used  in  this  act,  shall  be 
construed  to  include  the  waters  naturally  flowing  in  any 
surface  channel;  the  waters  of  any  spring,  lake,  pond, 
marsh  or  bog  naturally  discharging  into  such  a  channel; 
the  waters  escaping  from  works  for  the  conveyance  or 
storage  thereof  and  naturally  discharging  into  such  a 
channel,  and  the  waters  extending  under  such  a  channel 
or  beyond  the  sides  thereof  and  which,  if  withdrawn, 
would  be  replaced  by  waters  flowing  in  such  a  channel. 

SEC.  2.  The  beneficial  use  to  which  water  is  applied 
in  effecting  an  appropriation  thereof  shall  determine  for 


238  MINORITY   REPORT. 

what  purpose,  whether  domestic,  agricultural  or  other- 
wise, such  appropriation  is  made. 

SEC.  3.  Water  for  domestic  purposes,  as  the  phrase 
" Domestic  Purposes"  is  used  in  this  act,  shall  be  con- 
strued to  include,  among  other  uses  of  water  not  incon- 
sistent with  the  provisions  of  section  four  of  this  Article, 
water  for  the  drinking,  cooking,  cleansing  and  sanitary 
purposes  of  the  household  and  for  the  maintenance  of  the 
domestic  animals  kept  with  and  for  the  use  of  the  house- 
hold. 

SEC.  4.  Water  for  agricultural  purposes,  as  the 
phrase  "Agricultural  Purposes"  is  used  in  this  act,  shall 
be  construed  to  include,  among  other  uses,  every  benefi- 
cial use  to  which  water  may  be  applied  in  the  germina- 
tion, growth,  maintenance  or  culture  of  plants. 

SEC.  5.  Any  water  lawfully  applied  to  the  irrigation 
of  land  shall  be  taken  and  deemed  an  appurtenance  of 
such  land.  Any  such  water  may  be  used  for  the  raising 
and  maintenance  of  animals  upon  such  land,  for  the 
domestic  uses  of  the  people  living  or  occupied  upon 
such  land  and  the  mechanical  uses  pertaining  to  the 
cultivation  of  such  land. 

SEC.  6.  Any  water  lawfully  applied  to  the  opera- 
tion of  any  mine  or  of  any  mill,  smelter,  manufactory  or 
other  permanent  work  of  like  character  shall  be  deemed 
an  appurtenance  of  such  mine,*  mill,  smelter  or  works. 
Any  such  water  may  be  used  by  those  owning  such  mine 
or  works,  or  employed  thereat,  for  their  domestic  pur- 
poses. 

SEC.  7.  Any  transfer  of  any  such  land,  mine,  mill, 
smelter,  manufactory  or  other  works  of  which  water  is 
an  appurtenance,  shall  cause  the  right  of  employment 
of  such  water  to  pass  to  the  vendee  or  transferee  who 
shall  be  deemed  the  consumer  of  such  water,  and  the 
date  of  the  employment  thereof  shall  not  be  taken  or 
deemed  changed  by  reason  of  such  transfer. 


MINORITY    k  I- PORT. 

SEC.  8.  Except  when  expressly  authorized  or  re- 
quired by  law,  it  shall  be  unlawful  for  any  consumer  or 
use T  of  water  to  transfer,  lease  or  assign,  or  bargain  for 
tlu  sale,  lease  or  assignment  of  any  of  the  water  to  the 
employment  of  which  he  is  entitled,  or  any  right  which 
by  virtue  of  his  emplyment  of  water  he  may  have 
acquired,  or  to  receive  from  any  other  person  any  money 
or  other  valuable  thing  whatsoever  as  compensation  or 
consideration  for  the  rotation  or  prorating  of  water,  or 
any  agreement  on  his  part  to  rotate  or  prorate  water. 

SEC.  9.  Any  person  so  transferring,  selling,  leasing, 
assigning  or  so  bargaining  with  reference  to  the  trans- 
fer, sale,  lease  or  assignment  of  any  such  water  or  any 
right  he  may  have  acquired  to  the  use  thereof,  and  any 
person  receiving  any  money  or  other  valuable  thing 
whatsoever  in  consideration  of  the  prorating  or  rotating 
of  water,  or  in  consideration  of  his  agreement  to  pro- 
rate or  rotate  water,  shall  be  deemed  and  taken  to  have 
abandoned  all  right  to  the  use  or  enjoyment  of  such 
water;  Provided,  however,  Such  abandonment  shall  not 
operate  to  the  prejudice  of  the  rights  of  any  mortgagee, 
encumbrancer  or  equitable  owner  of  the 'lands,  mine  or 
mill,  smelter,  manufactory  or  other  works  to  which  such 
water  is  appurtenant. 

SEC.  10.  If  any  person  having  procured  water  to  be 
delivered  to  him  or  turned  into  any  ditch,  conduit,  lateral, 
sublateral  or  other  works  whercfrom  he  is  using  or 
wont  to  use  water,  by  pretense  that  he  or  other  persons 
are  entitled  thereto  or  require  the  same  for  domestic 
uses,  shall  afterwards  devote  the  said  waters  or  suffer 
the  same  to  flow  to  other  than  domestic  uses,  to  the 
injury  of  others  having  a  prior  right  to  enjoy  such  waters, 
such  person  so  offending  shall  be  deemed  guilty  of  a 
misdemeanor  and  on  conviction  thereof  shall  pay  a  fine 
of  not  less  than  ten  dollars  and  not  exceeding  one  hun- 
dred dollars,  in  the  discretion  of  the  Court  wherein 
conviction  is  had. 


240  MINORITY   REPORT. 

Sections  n,  12  and  13  are  the  same  as  sections  2,  3 
and  4  of  Article  I.  of  the  Majority  Report. 

SEC.  14.  Save  for  supplying  the  inhabitants  of  a  city 
or  town,  water  shall  not  during  the  irrigation  season, 
be  turned  into  or  suffered  to  flow  in  any  open  ditch, 
conduit  or  lateral  for  supplying  domestic  uses  solely, 
when  to  permit  such  flow  of  water  for  domestic  uses 
solely  will  result  in  unreasonable  and  disproportionate 
waste  from  seepage  or  evaporation. 

Section  15  same  as  section  7  of  Article  I.  of  the 
Majority  Report. 

SEC.  16.  The  authorities  of  any  city  or  town  or  any 
corporation  organized  solely  for  supplying  the  same  or  the 
inhabitants  thereof  with  water  for  domestic  or  sanitary 
purposes  or  other  purposes  whatsoever,  or  any  corpora- 
tion organized  for  constructing,  maintaining  and  operat- 
ing a  railway  as  a  common  carrier,  or  for  constructing, 
maintaining  and  operating  any  public  grist  mill,  or  any 
public  mill  or  other  works  for  the  retention  or  treatment 
of  gold  or  silver  bearing  ores  or  other  ores,  for  all  who 
may  resort  thereto,  may,  whenever  it  shall  be  necessary 
for  the  purpose  of  such  corporation  to  take,  appropriate 
or  damage  the  works  of  any  person  or  corporation  con- 
structed or  used  for  the  diversion,  retention  or  storage 
of  water,  or  to  acquire  the  right  of  carriage  of  water  by 
any  such  person  or  corporation  enjoyed,  or  the  right  to 
the  use  and  enjoyment  of  the  water  thereby  diverted, 
conveyed  or  stored  to  w7hich  any  such  person  or  cor- 
poration or  any  other  person  may  be  entitled,  or  any 
part  thereof,  or  to  take  and  appropriate  the  waters  of 
natural  streams  or  others  sources  of  supply  in  the  State 
to  the  injury  or  damage  of  any  appropriator  of  the 
waters  of  such  natural  stream  or  other  source  of  supply, 
and  the  compensation  to  be  paid  for  or  in  respect  of  the 
works  and  the  rights  or  priorities  so  sought  to  be  appro- 
priated, acquired  or  damaged  in  effecting  the  right  of 
carriage  of  such  waters  and  the  application  thereof  to 


MINORITY    R  I- TORT.  'J  I  1 

the-  uses  of  such  city  or  town,  or  of  such  common  car- 
rier or  such  public  mill  cannot  be  agreed  upon  betv. 
such  city,  town  or  other  corporation,  and  the  owners  of 
the  properties  and  those  entitled  to  the  rights  so  sought 
to  be  taken  or  damaged,  or  the  owners  of  such  works  or 
those  entitled  to  the  enjoyment  of  the  right  of  carriage 
and  the  right  of  employment  of  the  waters  diverted, 
conveyed  or  stored  by  means  of  such  works,  or  the  persons 
or  corporations  entitled  to  the  carnage  or  employment 
of  the  waters  of  such  stream,  or  any  of  them  are  or  is  in- 
capable of  consenting,  or  the  name  or  the  residence  of 
any  such  person  be  unknown  or  any  such  owner  or  per- 
son entitled  to  the  enjoyment  of  the  right  of  carriage 
or  the  right  of  employment  of  such  water  is  a*  non-resi- 
dent of  the  State  or  cannot  be  found,  it  shall  be  lawful 
for  such  city,  town  or  other  corporation  to  cause  the  com- 
pensation and  damages  in  that  behalf  payable  to  be 
ascertained  in  the  manner  prescribed  by  the  laws  regu- 
lating the  exercise  of  the  right  of  eminent  domain,  and 
every  such  city,  town  or  corporation  shall  be  entitled  to 
the  same  orders,  rules  and  other  proceedings  in  the  same 
case  and  of  like  effect  as  may  be  prescribed  in  such 
law7. 

Sections  17  to  24,  inclusive,  are  the  same  as  sections 
9  to  1 6,  inclusive^  of  Article  I.  of  the  Majority  Report. 


ARTICLE  III. 

OF    ACOUIRINCV    LANDS    FOR    THE    SITE    AND     WAY    OF    WORKS    FOR 
THE   DIVERSION,   CONVEYANCE   OR   STORAGE   OF  WATER. 

Sections  i  to  6,  inclusive,  are  the  same  as  Sections 
i  to  6,  inclusive,  of  Article  III.  of  the  Majority  Report. 

Section  7  is  the  same  as  Section  8,  of  Article  III.  of 
the  Majority  Report. 


81 


242  MINORITY   REPORT. 

ARTICLE  IV. 

OF    THE    CONSTRUCTION    AND    MAINTENANCE    OF    WORKS    FOR    THE 
DIVERSION,  CONVEYANCE  AND   STORAGE  OF  WATER. 

Sections  i  to  n,  inclusive,  are  the  same  as  sections  i 
to  u,  inclusive,  of  Article  IV.   of  the  Majority  Report. 

SEC.  12.  If  the  proprietors  of  any  ditch,  conduit  or 
other  works  for  diverting  the  water  of  any  natural  stream, 
shall  refuse  or  fail  to  erect  at  or  near  the  head  of  such 
ditch,  conduit  or  other  works  the  head-gate  required  by 
this  act,  or  to  maintain  the  same  in  good  order,  as  hereby 
required,  the  Water  Commissioner  of  the  district  wherein 
such  ditch,  conduit  or  other  works  may  be  situate,  shall, 
whenever  necessary  in  order  to  the  distribution  of  the 
waters  of  the  district  in  conformity  with  the  Statutes, 
exclude  the  water  of  such  stream  from  such  ditch,  con- 
duit or  other  works  by  filling  such  ditch,  conduit  or 
other  works  at  or  near  the  head  thereof,  or  by  cutting 
the  banks  thereof,  or  in  such  other  way  as  to  him  may 
seem  effective,  having  due  regard  to  the  cost  thereof, 
and  the  reasonable  cost  of  such  filling  or  other  work 
shall  be  paid  by  the  Board  of  Commissioners  of  the 
county  wherein  the  head  of  such  ditch,  conduit  or  other 
work  may  be  situate,  and  may  together  with  a  reason- 
able attorney's  fee,  to  be  fixed  by  the  Court,  be  recovered 
by  such  county  in  any  Court  of  competent  jurisdiction,  and 
the  judgment  of  the  Court  shall  be  a  lien  upon  and  against 
such  ditch,  conduit  or  other  works  and  the  appurtenances 
thereof,  and  all  right  of  the  proprietors  thereof  to  the  en- 
joyment of  the  right  of  carriage  of  the  waters  diverted  or 
conveyed  thereby,  and  shall  direct  the  sale  of  such  ditch, 
conduit  or  other  works,  and  'the  right  of  the  proprietors 
aforesaid  in  satisfaction  thereof,  and  such  judgment  may 
be  enforced  by  special  execution  or  other  proper  process. 
No  such  sale  shall  divest  or  impair  the  right  of  any  con- 
sumer of  water  diverted,  or  conveyed  by  means  of  such 
ditch,  conduit  or  other  works,  but  the  purchaser  at  such 
sale  shall  be  entitled  to  all  lawful  fees  and  other  sums 


MINORITY    UK  PORT.  L'  1  '•> 

of  nioii'  \  payable  by  the  consumers  of  such  water  in  re- 
spect to  the  carriage  thereof  by  means  of  such  works. 
Every  such  sale  shall  be  made  as  a  sale  of  real  estate, 
and  redemption  therefrom  may  be  made  in  the  manner 
provided  by  law  in  case  of  land  sold  on  execution. 
Such  proprietors  so  in  default  shall  be  liable  for  all  in- 
jury and  damages  occasioned  any  consumer  of  water 
lawfully  entitled  thereto  from  such  ditch,  conduit  or 
other  works,  by  the  willful  or  negligent  failure  of  such 
proprietors  to  comply  with  the  provisions  of  this  act  ; 
and  if  any  person,  without  first  constructing  the  head- 
gate  therein,  as  required  by  this  act,  to  the  satisfaction 
of  the  Water  Commissioner,  shall  open  any  such  ditch, 
conduit  or  other  works  after  the  same  hath  been  filled 
by  the  Water  Commissioner  pursuant  hereto,  or  shall 
repair  or  replace  the  bank  thereof,  where  the  same  hath 
been  cut  or  opened  by  the  Water  Commissioner,  or  turn 
the  water  into  such  ditch,  conduit  or  other  works  after 
the  same  hath  been  excluded  therefrom  by  the  Water 
Commissioner  pursuant  hereto,  or  having  control  of 
such  ditch  or  conduit,  shall  knowingly  permit  water  to 
flow  therein  after  the  same  hath  been  closed  or  the  water 
excluded  therefrom  by  the  Water  Commissioner  pur- 
suant hereto,  every  such  person  so  offending  shall  be 
deemed  guilty  of  a  misdemeanor,  and  shall  be  fined  in 
any  sum  not  exceeding  three  hundred  dollars,  or  im- 
prisoned in  the  county  jail  not  exceeding  six  months, 
or  punished  by  both  such  fine*  and  imprisonment,  in  the 
discretion  of  the  Court  wherein  conviction  is  had. 

Sections  13  to  15,  inclusive,  are  the  same  as  sections 
13  to  15,  inclusive,  of  Article  IV  of  the  Majority  Re- 
port. 

SEC.  16.  The  proprietors  of  every  ditch,  conduit  or 
other  works  for  conveying,  retaining  or  storing  water 
shall  permit  the  State  Engineer,  or  any  person  appointed 
for  the  purpose  by  the  State  Engineer,  or  by  order  of  the 
District  Court,  whereunto  by  this  act  is  committed  juris- 


244  MINORITY  REPORT. 

diction  for  settling  and  adjudicating  the  rights  and  pri- 
orities among  the  appropriators  of  water  in  the  Water 
Division,  to  at  any  time  measure  and  rate  such  ditch, 
canal  or  other  works.  Every  such  order  of  appointment 
shall  specify  the  ditch,  conduit,  reservoir  or  other 
works  to  be  measured  or  rated,  and  the  times  within 
which  such  measurement  may  be  made  and  the  name  of 
the  person  appointed,  and  shall  be  certified  under  the 
seal  of  the  State  Engineer,  or  the  seal  of  such  District 
Court.  Whenever  there  shall  be  presented  to  the  Water 
Commissioner  of  any  Water  District  the  order  of  the 
State  Engineer  or  of  any  District  Court,  duly  certified 
as  in  this  section  above  provided,  directing  the  measur- 
ing and  rating  of  any  ditch,  conduit  or  other  works  in 
his  district,  or  whenever  the  proprietors  of  any  such 
ditch,  conduit  or  other  works  shall  request  of  any  Water 
Commissioner  permission  to  fill  such  works  for  the  pur- 
pose of  measuring  and  rating  the  same  in  pursuance  of 
the  law,  such  Water  Commissioner,  notwithstanding 
anything  in  this  act  contained,  shall  cause  or  permit  the 
head-gate  of  the  ditch,  conduit,  reservoir  or  other  works 
to  be  raised,  and  such  ditch,  conduit,  reservoir  or  other 
works  to  be  filled,  and  so  remain  filled  for  a  length  of 
time  sufficient  to  conveniently  measure  and  rate  the 
same;  Provided,  however,  That  the  Water  Com- 
missioner shall  not  cause  siich  works  to  be  filled 
at  request  of  the  proprietors  thereof,  without  the 
order  of  the  State  Engineer  or  the  District  Court 
aforesaid,  when  it  shall  seem  to  him  unneces- 
sarily injurious  to  others  to  comply  with  such 
request.  The  Superintendent  and  manager  of  such 
works  shall  always,  on  request,  to  the  best  of  his 
ability,  render  assistance  to  such  person  named  in  such 
order  of  the  State  Engineer  or  such  District  Court,  in 
and  about  the  measuring  and  rating  of  such  works,  by 
admitting  water  into  such  ditch,  conduit  or  other  works 
to  the  full  capacity  thereof,  if  practicable,  or  by  dis- 
charging the  water  out  of  such  reservoir  or  other  works 


ORITY    REPORT. 

c,  wlu-n  the  same  can  be  conveniently  done 
without  material  loss  to  the  proprietor  or  others,  and  by 
all  other  means  in  his  power. 

Section  17  is  the  same  as  Section  17  of  Article  IV.  of 
the  Majority  Report. 

Section   18  is  the  same  as  Section  20  of  Article  IV. 
of  the  Majority  Report. 


ARTICLE   V. 

OK    THE    ADMINISTRATION    OF    THE    WATERS    OF    THE    STATE    AND 
THE  OFFICERS  APPOINTED  THEREFOR. 

Sections  i  to  19  inclusive  are  the  same  as  Sections 
i  to  19  inclusive  of  Article  V.  of  the  Majority  Report. 

SEC.  20.  The  Superintendent  of  Irrigation  shall, 
within  the  Division  for  which  he  is  appointed,  have 
general  control  of  the  Water  Commissioners  within  such 
Division,  and  shall,  under  the  supervision  of  the  State 
Engineer,  execute  the  laws  of  the  State  relative  to  the 
distribution  of  water,  in  accordance  with  the  rights  and 
priorities  of  the  carriers  and  consumers  of  water  in 
his  Division  as  the  same  are  or  may  be  established  by 
judicial  decrees;  and  perform  such  other  duties  as  may 
be  prescribed  by  law  or  by  the  State  Engineer  relative 
to  the  same  matters. 

Sections  21  to  33  inclusive  are  the  same  as  Sections  21 
to  33  inclusive  of  Article  V.  of  the  Majority  Report. 

SEC.  34.  Whenever  any  decree  shall  be  made  in 
any  of  the  District  Courts,  to  which  by  this  act  is  com- 
mitted jurisdiction  to  settle  the  rights  and  priorities  of 
right  among  the  several  appropriators  of  water  in  any 
Water  Division,  establishing  the  rights  and  priorities  of 
carriers  of  water,  and  a  certified  copy  thereof  filed  in  the 
office  of  the  State  Engineer,  as  by  this  act  provided, 
the  State  Engineer  shall  cause  to  be  prepared  and 
always  to  be  kept  in  his  office,  a  book  to  be  entitled  "A 


246  MINORITY   REPORT. 

register  of  priorities  of  right  to  the  carriage  of  water 

for  Water  Division  number ,"  and  shall  cause 

to  be  entered  therein  and  preserved  all  such  copies  of 
decrees,  and  shall  as  soon  as  may  be  thereafter,  prepare 
from  such  decrees  a  table  of  the  ditches,  conduits,  reser- 
voirs and  other  works  for  the  carriage  of  water  within  such 
Division,  arranging  the  same  in  consecutive  order  accord- 
ing to  the  priorities  of  the  respective  rights  of  carriage  of 
water  within  such  division.  Such  table  shall  contain  the 
following  information  arranged  in  separate  columns: 
The  name  of  the  ditch,  conduit,  reservoir  or  other  works; 
the  Water  District  in  which  the  same  is  situated;  the 
stream  or  source  wherefrom  water  is  thereby  diverted ;. 
the  name  of  the  person,  association  or  corporation  con- 
trolling the  same;  and  the  name  and  post-office  address 
of  the  Superintendent  upon  whom,  as  provided  by  this 
act,  notice  in^respect  of  the  said  works  is  to  be  served; 
the  number  of  cubic  feet  of  water  per  second,  or  of  acre 
feet  which  the  proprietors  thereof  are  thereby  entitled 
to  divert,  convey  or  store  therein,  (the  extent  of  the 
right  of  carriage  by  means  of  the  original  construction, 
and  that  by  means  of  each  enlargement  or  at  any  time 
subsequently  acquired,  being  stated  separately  and  in 
their  proper  order  and  place,  according  to  the  dates  of 
carriage  thereof);  the  total  number  of  cubic  feet  per  sec- 
ond of  water,  the  right  of  carriage  of  which  was  pre- 
viously acquired  to  be  conveyed  in  ditches  or  conduits,  and 
the  number  of  acre  feet  to  be  stored  in  reservoirs  or  other 
works  in  such  Water  Division,  the  number  of  cubic  feet 
per  second  or  acre  feet  of  water,  the  right  of  carriage  of 
which  was  previously  acquired  to  be  conveyed  in  ditches 
or  conduits,  or  to  be  stored  in  reservoirs  or  other  works 
in  the  Water  District  wherein  such  ditch,  conduit,  or  other 
works  may  be  situate;  and  such  other  and  further  infor- 
mation as  to  the  State  Engineer  may  seem  useful  or 
necessary  to  enable  the  Superintendents  of  Irrigation  to 
make  proper  distribution  of  the  waters  of  such  Division 
according  to  such  decree;  and  in  case  any  decree  shall 


OKITV    ! 


:uTwards  i-iik-ivd  amendatory  or  supplementary  to 
such  decree,  or  any  decree  establishing  UK-  right  of  any 
person  Ot  corporation  not  in  such  first  decree-  nanu •••'. 
the  carriage  of  water,  or  any  decree  establishing  and 
limiting  the  amount  of  water  to  which  any  city  or  town 
or  person  or  corporation  supplying  any  city  or  town  with 

r  is  entitled  to  divert,  convey  or  store,  he  shall 
cause  the  substance  thereof  to  be  entered  in  such  table 
in  proper  order  and  in  the  same  manner  aforesaid;  and 
shall  forthwith  after  the  preparation  of  such  table,  or  any 
amendment  or  supplement  thereto,  cause  a  copy  thereof, 
certified  under  his  seal  of  office,  to  be  transmitted  to  the 
Superintendent  of  Irrigation  for  the  proper  Division  within 
which  such  decree  shall  have  been  entered.  He  shall 
also  in  like  manner  and  forthwith,  or  as  soon  as  may  be, 
after  the  receipt  of  the  certified  copy  of  any  such  decree, 
cause  a  like  table  to  be  prepared  for  each  Water  District 
within  such  Water  Division,  setting  forth  the  same 
matters  in  respect  to  the  several  ditches,  conduits,  reser- 
voirs and  other  works  in  such  Water  District,  and 
arranging  the  said  several  rights  of  carriage  of  water  in 
such  table,  set  down,  according  to  their  several  respect- 
ive priorities  of  right  in  said  Water  District,  and  shall 
certify  and  transmit  a  copy  thereof  and  of  each  amend- 
ment or  supplement  thereunto  under  his  seal  of  office 
to  the  Water  Commissioner  of  such  Water  District. 

SEC.  35.  The  Superintendent  of  Irrigation  of  each 
Division  and  the  Water  Commissioner  of  each  Water 
District  shall  carefully  preserve  the  said  tables  and  re- 
turn the  same  to  the  State  Engineer  for  correction 
whenever  required  by  him,  and  always  at  the  end  of  the 
irrigation  season.  No  claim  of  priority  of  right  to  the 
carriage  of  water  not  set  forth  in  the  said  tables  shall 
be  regarded  by  the  Superintendent  of  Irrigation  or 
Water  Commissioner  in  the  distribution  of  water  until 
all  persons  appearing  by  such  tables  to  be  entitled  to 
the  carriage  and  use  of  water,  shall  have  received  the 


IMS  MINORITY    REPORT. 

full  amount  to  which  by  such  tables  they  severally 
appear  entitled,  and  no  other  person  shall  be  permitted 
to  have,  take  or  receive  any  water  which  might  flow 
into  the  ditches,  conduits  or  other  works  set  down  in 
such  tables;  Provided,  however,  That  nothing  herein 
contained  shall  be  so  construed  as  to  require  the  Super- 
intendent of  Irrigation,  or  Water  Commissioner,  to 
deliver  to,  or  suffer  to  flow  into  any  ditch,  conduit  or 
other  works,  water  manifestly  in  excess  of  the  needs  of 
the  consumers  of  water  by  means  of  such  works  for 
the  uses  to  which  such  water  was  applied  in  effecting 
the  appropriation  thereof,  nor  water  to  the  carriage  of 
which,  by  virtue  of  any  agreement  made  in  pursuance 
of  the  eleventh  Article,  the  proprietors  of  any  other 
works  are  entitled. 

SEC.  36.  They  shall  cause  the  waters  of  the  several 
streams  and  sources  of  supply  in  their  respective  Divis- 
ions and  Districts  to  be  distributed  among  the  several 
ditches,  conduits  and  other  works  in  the  said  Water 
Divisions  and  Districts,  respectively,  in  accordance  with 
the  said  table  as  nearly  as  may  be,  so  that  the  appropria- 
tors  of  water,  by  means  of  such  works,  shall  at  all  times 
receive  the  water,  which,  according  to  said  table,  may 
be  diverted,  conveyed  or  stored  by  means  of  such  works 
to  the  extent  to  which  such  water  may  be  needed  by  the 
consumers  thereof  for  the  uses  to  which  such  water  was 
applied  in  effecting  the  appropriation  thereof.  And, 
whenever  it  shall  appear  to  any  Superintendent  of  Irri- 
gation or  Water  Commissioner  that  there  is  flowing  into 
any  ditch,  conduit,  reservoir  or  other  works  water,  the 
date  of  carriage  of  which  is  subsequent  to  the  date  of 
carriage  of  water  by  means  of  any  other  ditch,  conduit, 
reservoir  or  other  works,  and  that  such  ditch,  conduit, 
reservoir  or  other  works  having  a  prior  date  of  carriage 
of  water,  is  not  receiving  the  supply  of  water  which, 
according  to  the  said  tables,  ought  to  flow  to  the  same, 
he  shall  at  once  cause  the  head-gate  of  such  ditch,  con- 
duit, reservoir  or  other  works  having  the  subsequent  date 


.MINORITY    Kl-l'ORT.  '_'  J'.l 

of  carriage,  to  be  closed,  or  partially  closed,  so  that  a 
sufficient  quantity  may  pass  and  flow  to  the  ditch,  con- 
duit or  other  works  having  the  priority  of  right  thereto 
and  to  the  amount  to  which,  according  to  such  table,  the 
same  is  entitled  ;  Provided,  however,  That  the  Superin- 
tendent of  Irrigation  or  the  Water  Commissioner  shall 
not  cause  any  head-wates  to  be  so  closed,  unless  thereby 
water  may  be  given  to  some  ditch,  conduit  or  other 
works  having  a  priority  of  right;  And  provided, 
further,  That  nothing  herein  contained  shall  be  so 
construed  as  to  authorize  or  permit  any  Water  Com- 
missioner to  distribute  water  to  the  ditches,  con- 
duits, reservoirs  or  other  works  of  his  District 
which,  according  to  the  table  of  the  Superintend- 
ent of  Irrigation,  should  flow  to  the  ditches,  conduits, 
reservoirs  or  other  works  of  any  other  District  enjoying 
a  prior  right,  when  directions  in  writing,  touching  such 
matter,  shall  have  been  (given  to  him  by  the  Superin- 
tendent of  Irrigation. 

» 
Section  37  is  the  same  as  section  37  of  Article  V.  of 

the  Majority  Report. 

SEC.  38.  The  Superintendent  of  Irrigation  shall  file 
and  carefully  preserve  all  such  reports,  and  forthwith 
after  the  receipt  of  any  such  report  he  shall  carefully 
examine  the  same  and  shall  therefrom  ascertain  what 
ditches,  conduits  or  reservoirs  in  his  Water  Division  are 
and  what  are  not  receiving  the  supply  of  water  to  which 
they  are  severally  entitled;  and  whenever  it  shall  appear 
therefrom,  or  otherwise  to  his  satisfaction  that  any  ditch, 
conduit,  reservoir  or  other  works  within  his  Water 
Division  is  receiving  any  water  to  which,  under  the 
decree  of  the  District  Court,  any  other  ditch,  conduit  or 
reservoir  senior  in  priority  thereto  is  entitled,  he  shall 
forthwith  by  telegram,  if  he  shall  deem  it  necessary,  direct 
the  Water  Commissioner  of  the  District  wherein  is  situ- 
ate such  ditch,  conduit,  reservoir  or  other  works  so  receiv- 
ing water  which  should  flow  to  a  ditch  senior  in  priority, 


32 


I?i30  MINORITY   REPORT. 

to  close  down  the  head-gate  of  such  works  so  as  to  allow 
such  water  to  flow  to  the  ditches,  conduits,  reservoirs  or 
other  works  entitled  thereto,  according  to  such  decree; 
Provided,  however,  That  the  Superintendent  of  Irriga- 
tion shall  not  be  required  to  direct  the  closing  of  any 
head-gate  where  water  cannot  thereby  be  given  to  works 
the  carriers  of  water  whereby  have  a  priority  of  right 
thereto  and  the  supply  of  which  is  insufficient  to  meet 
the  needs  of  consumers  of  water  thereunder  for  the 
uses  to  which  such  water  was  applied  in  effecting  the 
appropriation  thereof. 

SEC.  39.  Until  decrees  shall  be  rendered  in  pursu- 
ance of  this  Act  for  adjudicating  the  rights  and 
priorities  of  carriers  of  water  in  any  Water  Division, 
distribution  shall  be  made  as  nearly  as  may  be  according 
to  the  decrees  heretofore  rendered  in  the  several  Water 
Districts  having  regard  to  the  dates  of  the  several 
appropriations  within  the  Division,  and  without  regard 
to  the  date  or  order  of  the  several  appropriations  in  the 
Water  Districts;  Provided,  however,  That  nothing 
herein  contained  shall  be  deemed  to  validate  any  such 
decree,  or  make  the  same  obligatory  upon  or  against  those 
entitled  to  the  use  of  water  in  any  Water  District  save 
that  in  respect  whereof  such  decree  was  rendered;  and 
where  in  any  case  the  proprietors  of  any  ditch,  conduit 
or  reservoir  named  in  any  such  decree,  shall,  for  the 
space  of  four  years  after  the  entry  of  such  decree,  have 
customarily  failed  to  divert,  convey  or  store  any  portion 
of  the  waters  which  by  such  decree  they  appear  to  have 
been  entitled  to  divert,  convey  or  store,  the  same  shall 
be  deemed  to  have  been  abandoned;  and  not  withstand- 
ing any  such  decree,  such  portion  of  any  waters  thereby 
awarded  to  the  proprietors  of  any  ditch,  conduit,  or 
reservoir,  not  used  and  enjoyed  for  the  space  of  four 
years  after  the  entry  of  such  decree,  shall  be  distributed 
to  the  subsequent  carriers  of  water  according  to  their 
several  priorities  of  right  as  the  same  may  have  been  or 
shall  hereafter  be  established. 


MINORITY    KI-i'oRT. 

Waters  in  any  Water  Division  whi 

in  any  Water  District  whereof,  no  decree  hath  been 
entered  for  settling  the  rights  and  priorities  of  the 
carriers  ot  water,  and  waters,  the  right  of  carriage  of 
which  shall  for  any  reason  not  have  been  embraced  in 
any  such  decree,  and  waters,  the  right  of  carriage  of 
which  is  subsequent  to  the  rights  of  carriage  in  any 
Water  Division  last  in  priority  in  any  such  decree 
mentioned,  shall  be  distributed  by  the  Superintendents 
of  Irrigation,  subject  to  the  orders  of  the  State  Engineer 
as  the  rights  of  the  several  carriers  thereof  may  be 
ascertained  and  determined  by  the  State  Engineer  from 
the  best  information  accessible  to  him,  reserving  how- 
ever, to  every  person  aggrieved,  the  right  to  apply  for 
relief  to  the  District  Court,  whereunto  by  this  Act,  is 
committed  jurisdiction  for  settling  and  adjudicating  the 
rights  and  priorities  of  the  appropriators  of  water  in 
such  Water  Division. 

Sections  41  to  47  inclusive  are  the  same  as  sections 
41  to  47  inclusive  of  Article  V.  of  the  Majority  Report. 

SEC.  48.  Whenever  it  shall  appear  that  the  waters 
of  any  natural  stream  change  so  suddenly  in  volume 
that  the  Water  Commissioner  is  unable  to  distribute  the 
same  to  the  different  ditches  or  reservoirs  conveying  or 
storing  the  water  of  such  stream,  strictly  in  accordance 
with  the  decrees  of  the  District  Courts,  to  which  juris- 
diction to  determine  the  several  rights  and  priorities  of 
the  appropriators  of  water  in  the  division  is  hereby- 
given,  and  that  in  consequence  of  such  inability 
more  or  less  of  the  flood  waters  of  such  stream  run  to 
waste,  the  Superintendent  of  Irrigation  may  cause  to  be 
erected  at  the  rating  flume  in  any  ditch,  conduit  or  reser- 
voir, upon  the  request  and  at  the  expense  of  the  proprie- 
tors thereof,  a  clock-work  register,  such  as  that  now 
used  in  securing  a  continuous  record  of  the  stage  of 
water  in  the  streams  by  the  department  of  the  State 
Engineer,  or  other  device  satisfactory  to  the  State  Engi- 


~2,)*2  MINORITY  REPORT. 

neer,  and  may  require  the  Water  Commissioner  to  place 
on  such  register  proper  record  sheets  and  renew  the  same 
each  week  and  transmit  the  same  to  his  office;  and 
whenever  in  the  distribution  of  water  to  any  ditch, 
conduit  or  other  works  supplied  with  such  a  clock-work 
register  at  the  rating  flume  thereof,  either  the  Superin- 
tendent of  Irrigation  or  Water  Commissioner  may  deem 
it  best  so  to  do,  he  may  authorize  the  proprietor  of 
such  works  to  raise  the  gates  thereof  and  permit  water 
to  flow  through  the  rating  flume  thereof  to  such  a  depth 
as  he  may  designate,  or  he  may  direct  such  proprietor  to 
close  down  the  gates  of  such  works  so  that  the  proper 
quantity  of  water  should  flow  thereto,  and  such  direc- 
tion may  be  made  by  telegram  if  necessary;  and  if  upon 
the  return  of  such  record  sheet  it  shall  appear  that  any 
such  ditch,  conduit  or  other  works  received  more  water 
than  according  to  the  decree  of  such  District  Court  it 
was  entitled,  the  Superintendent  of  Irrigation  or  the 
Water  Commissioner  shall  cause  the  water  flowing  into 
such  ditch  to  be  correspondingly  reduced  during  the 
succeeding  week,  or  any  part  thereof,  so  that  such  ditch 
may  receive,  during  such  combined  periods,  as  nearly 
as  may  be,  the  waters  to  which  the  carriers  of  water 
thereby  are  entitled  ;  Provided,  however,  That  if  the 
proprietors  of  such  works,  or  carriers  of  water  thereby, 
shall  refuse  or  fail  to  comply  with  the  directions  of  the 
Water  Commissioner  or  Superintendent  of  Irrigation  in 
any  matter  touching  the  lowering  of  such  gates,  and  the 
governing  of  the  quantity  of  water  admitted  to  such 
works,  with  reasonable  promptness  and  exactness,  the 
Water  Commissioner  or  Superintendent  of  Irrigation 
shall  thereafter  refuse  to  the  said  proprietors  the  priv- 
elege  theretofore  granted,  as  herein  prescribed  ;  And 
provided  further,  That  no  such  clock-work  register  or 
other  such  device  shall  be  so  used  and  depended  upon 
until  approved  in  writing  by  the  State  Engineer  in  a 
communication  addressed  to  the  Superintendent  of 
Irrigation  of  the  proper  Water  Division. 


MINORITY    Rr.I'oRT. 


ARTICLK    VI 

PROVISIONS    I  OK     I'STAHI.ISHIM,     THI       RIGHTS     AND     PRIOKITIJ. 
KMIM.OYKIO.    OF     WAT]  SERVING     RECORD     hvn>; 

THBRBOP. 

SECTION  i.  The  proprietor  or  proprietors  of  every 
ditch,  conduit,  reservoir  or  other  works,  any  right  or 
rights  of  carriage  of  water  whereby  shall  have  been  de- 
termined and  settled  in  pursuance  of  this  act,  by  any 
decree  of  any  District  Court  to  which  by  this  act  is  com- 
mitted jurisdiction  to  determine  and  settle  the  rights 
and  priorities  of  appropriators  of  water,  shall  within 
ninety  days  after  the  rendering  of  such  decree  prepare 
and  cause  to  be  subscribed  by  the  President  or  other 
chief  officer  of  the  association  or  corporation,  proprietors 
of  such  works,  or  the  superintendent  thereof,  appointed 
in  pursuance  of  this  act,  certificates  setting  forth:  The 
name  of  such  ditch,  conduit,  reservoir  or  other  works; 
the  Water  District  and  the  county  or  counties  wherein 
the  same  is  situated;  the  date  and  extent  of  each  right 
of  carriage  of  water  by  means  of  such  works,  determined 
in  pursuance  of  the  provisions  of  this  act;  the  extent  to 
which  the  water,  the  right  of  carriage  of  which  was  at 
any  time  acquired,  is  customarily  diverted,  conveyed  or 
stored  by  means  of  such  works  and  applied  to  beneficial 
uses,  as  nearly  as  may  be;  the  name  of  each  individual 
consumer  or  person  entitled  to  the-  use  of  the  water; 
the  right  of  carriage  of  which,  by  means  of  such 
works,  was  at  any  time  acquired,  so  far  as  known; 
the  water  to  which  each  such  consumer  is  en- 
titled with  the  date  of  his  enployment  of  water  and 
the  extent  thereof,  specifying  the  same  as  nearly  as  may 
be  in  cubic  feet  per  second  or  in  acre  feet,  as  may  be  the 
more  reasonably  condstant  with  the  custom  of  distrib- 
uting water  by  means  of  such  works,  and  the  period  or 
periods  within  which  or  during  which  such  consumer  is 
entitled  to  the  use  of  such  water  to  the  extent  of  his 
necessities  therefor;  the  particular  land,  mine,  mill, 


254  MINORITY   REPORT., 

manufactory  or  other  works  to  which  such  consumer 
customarily  applied  or  proposes  to  apply  such  water  for 
the  irrigation  or  operation  thereof;  the  date  and  tenor 
or  substance  of  any  written,  oral  or  implied  agreement 
between  those  affecting  the  carriage  of  water  by  means 
of  such  works  and  the  consumer  of  such  water,  affect- 
ing the  date  or  extent  of  each  right  of  employment  of 
such  water;  and,  if  the  water,  the  right  of  carriage  of 
which  by  means  of  such  works  at  any  time  acquired,  is 
not  customarily  conveyed  or  stored  to  an  extent  suffi- 
cient and  efficient  for  the  uses  of  all  those  claiming  to 
be  entitled  to  the  use  of  such  water,  the  names  of  those 
entitled  to  enjoy  the  earliest  rights  of  employment  of 
the  water  conveyed  or  stored  under  any  right  of  car- 
riage of  water  means  of  such  works,  to  the  number 
whose  needs  for  such  water  for  the  uses  to  which  the 
same  was  applied  in  affecting  an  employment  thereof, 
may  with  reasonable  sufficiency  and  efficiency  be  sup- 
plied by  the  water  which  is  customarily  diverted,  con- 
veyed or  stored  under  and  by  virtue  of  such  right 
of  carriage;  and  shall  verify  such  certificates  as  true 
to  his  best  knowledge,  information  and  belief,  and  shall 
cause  one  such  certificate,  verified  as  aforesaid,  to  be 
filed  with  the  Clerk  of  the  District  Court,  whereunto  by 
this  act  is  committed  jurisdiction  to  determine  and  set- 
tle the  rights  and  .priorities  of  appropriators  of  water 
within  the  division  wherein  such  works  may  be  situate, 
and  shall  preserve  a  duplicate  copy  thereof,  which  shall 
be  kept  at  the  office  of  the  superintendent  of  such 
works,  appointed  in  pursuance  of  this  act,  if  he  shall 
have  an  office,  otherwise  in  his  custody  and  at  all  times 
open  to  the  inspection  of  any  person  interested  as  owner 
or  encumbrancer  of  such  works,  or  as  consumer  of  the 
water  diverted,  conveyed  or  stored  thereby,  or  as  en- 
cumbrancer of  the  land  or  works  to  which  such  water  is 
appurtenant. 

SEC.   2.     Any  person  or  persons  owning  or  controll- 
ing or  claiming  to  own  or  control,  any  ditch,  conduit, 


MINORITY    Rl-:i'< 


reservoir  or  other  works,  by  means  of  which-  water  is 
diverted  in  whole  or  in  part  for  hire,  or  to  be  applied  to 
a  beneficial  use  in  whole  or  in  part  by  others  than  those 
interested  in  the  ownership  of  such  works,  who  shall 
fail  or  refuse  to  comply  with  the  provisions  of  section  i, 
of  this  article,  as  nearly  as  may  be,  shall  be  deemed 
guilty  of  a  misdemeanor,  and  upon  conviction  thereof 
shall  be  fined  not  less  than  one  hundred  dollars  and  not 
more  than  one  thousand  dollars,  in  the  discretion  of  the 
Court  wherein  conviction  is  had. 

SEC.  3.  At  any  time  after  the  expiration  of  the 
period  of  ninety  days  next  succeeding  the  rendering  of 
any  decree  pursuant  to  Article  VIII.  of  this  act,  any 
person  claiming  to  be  entitled  to  use  or  enjoy  any  part 
or  share  of  the  water,  the  right  of  carriage  of  which 
by  means  of  any  ditch,  conduit,  reservoir  or  other  work 
shall  have  been  determined  in  such  decree,  may  exhibit 
in  the  District  Court  whereunto  by  this  act  is  committed 
jurisdiction  to  settle  and  determine  the  rights  and  prior- 
ities of  the  appropriators  of  water  in  such  Water  Divis- 
ion, his  complaint,  praying  the  Court  to  establish  his 
right  and  the  rights  of  the  several  persons  entitled  to  use 
and  enjoy  the  water  diverted,  conveyed  or  stored  by 
means  of  such  works. 

SEC.  4.  Every  such  complaint  shall  set  forth  either 
in  full  or  by  reference  to  matters  of  record  or  documents 
on  file  in  the  office  of  the  Clerk  of  the  Court  wherein 
such  complaint  is  exhibited,  the -matter  and  facts,  so  far 
as  known  to  the  complainant,  contained,  or  required  to 
be  contained,  in  the  certificate  prescribed  by  the  first 
section  of  this  article,  together  with  the  rights  of  the 
plaintiff  to  the  use  and  enjoyment  of  any  part  or  share 
of  the  waters  diverted,  conveyed  or  stored  by  means  of 
such  works  under  any  right  of  carriage  of  water;  the 
lands,  mine,  mill,  manufactory  or  other  works,  to  the 
irrigation  or  operation  of  which  the  water,  the  right 
of  employment  of  which  is  enjoyed  by  the  plaintiff,  is 


MINORITY   REPORT. 

applied,  or  sought  to  be  applied;  the  foundation  of  his 
claim  thereto;  the  date  and  tenor  of  the  agreement,  if 
any,  between  himself  and  the  carrier  of  such  water  to 
the  use  whereof  such  consumer  claims  to  be  entitled; 
and  shall  name  as  defendants  thereto  the  proprietors  of 
such  works  and  all  mortgagees  and  encumbrancers 
thereof,  and  the  persons  claiming  to  be  entitled  to  use 
and  enjoy  the  waters  diverted,  conveyed  or  stored  by 
means  of  such  works,  and  the  mortgagees  and  encum- 
brancers of  the  lands  or  works  to  which  the  water  di- 
verted, conveyed  or  stored  by  means  of  such  works, 
may  be  appurtenant,  or,  if  such  persons  are  very  nu- 
merous, one  or  more  of  such  persons  shall  be  named  as 
defendants,  and  all  other  persons  claiming  to  be  entitled 
to  use  or  enjoy  the  waters  diverted,  conveyed  or  stored 
by  means  of  such  works,  and  all  mortgagees  and  encum- 
brancers of  the  land  or  works  to  which  such  water  is 
appurtenant,  shall  be  made  parties  defendant  by  the 
title:  "All  those  whom  it  may  concern  and  con- 
sumers of  water  from ,"  designating  the 

name  of  the  works. 

SEC.  5.  Upon  the  filing  of  such  complaint  the  Clerk  of 
the  Court  shall  issue  a  summons  as  in  other  cases,  save 
that  the  same  shall  be  made  returnable  not  less  than 
thirty  days  thereafter,  and  the  plaintiff  in  such  action 
shall  cause  the  same  to  be  published  for  at  least  four 
weeks  consecutively  next  before  the  return  thereof,  in  at 
least  one  public  newspaper  published  in  each  county 
wherein  the  said  works  are  situate  or  wherein  the  waters 
therefrom  have  been  theretofore,  so  far  as  known,  custo- 
marily used;  or  in  case  there  be  no  such  newspaper  pub- 
lished in  any  one  of  such  counties,  shall  cause  the  said 
summons  to  be  posted  in  at  least  five  public  places  in 
such  county  for  at  least  four  weeks  prior  to  the  return 
day  thereof. 

SEC.  6.  At  any  time  within  ten  days  after  the 
return  day  of  such  summons,  or  afterward  by  leave  of 


ORITV    i 

the  Court,  any  person  claiming  to  be  entitled  to  the  use 
or  enjoyment  of  water  diverted,  conveyed  or  stored  by 
means  of  such  works,  or  any  mortgagee  or  encumbrancer 
of  any  lands  or  works  to  which  such  water  is  applied, 
may  appear  and  be  made  party  in  the  said  cause  either 
as  plaintiff  or  defendant,  setting  forth  either  by  supple- 
mentary complaint  or  by  answer  the  claim  made  by  him 
to  the  use  or  enjoyment  of  water  diverted,  conveyed  or 
stored  by  means  of  such  works,  or  the  facts  of  his  claim 
as  mortgagee  or  encumbrancer  of  the  land  or  works  to 
the  irrigation  or  operation  of  which  any  such  water  is 
applied  or  sought  to  be  applied,  and  the  same  particulars 
touching  such  claim  of  right  as  above  required  in 
the  complaint;  and  thereupon  the  Court  shall  appoint 
a  Referee  'to  attend  at  such  times  and  in  such  places 
in  the  several  counties  as  may  be  fixed  in  the  order 
of  the  Court  in  that  behalf,  to  hear  and  report 
to  the  Court  all  such  testimony  as  may  be  pro- 
duced before  him  touching:  Each  right  of  carriage 
of  water  by  means  of  such  works,  as  determined  and 
settled  in  pursuance  of  Article  VIII.  of  this  act;  the 
extent  to  which  the  water,  the  right  of  carriage  of  which 
was  at  any  time  acquired,  is  customarily  diverted,  con- 
veyed or  stored  by  means  of  such  works  and  applied  to 
beneficial  uses;  the  names  of  the  persons  or  corporations 
entitled  to  effect  the  carriage  of  water  by  means  of  such 
works;  the  name  of  each  individual  consumer  or  person 
entitled,  or  claiming  to  be  entitled,  to  the  employment  of 
the  water  diverted,  conveyed  or  stored  under  any  right 
of  carriage  of  water  by  means  of  such  works;  the  water 
to  which  each  such  consumer  is  entitled,  and  the  date 
of -each  right  of  employment  of  water  and  the  extent 
thereof,  and  the  period  or  periods  within  which  or  during 
which  each  consumer  is  entitled  to  the  use  of  such 
water;  the  particular  lands,  mine  or  mill,  manufactory 
or  other  works  to  which  each  such  consumer  applies  or 
proposes  to  apply  such  water  for  the  irrigation  or  opera- 
tion thereof;  the  date  and  tenor  or  substance  of  any 


I?.")*  MINORITY   REPORT. 

written,  oral  or  implied  agreement  between  those  effect- 
ing the  carriage  of  water  by  means  of  such  works  and 
each  consumer  of  such  water,  or  the  date  and  tenor  or 
substance  of  any  written,  oral  or  implied  agreement 
between  any  of  the  consumers  of  such  water,  affecting  the 
date,  or  extent  of  any  right  of  employment  of  such  water 
from  such  works;  or  touching  the  number  and  names  of 
those  persons  entitled  to  enjoy  the  earliest  rights  of 
employment  of  the  water,  the  right  of  carriage  of 
which  was  at  any  time  acquired,  the  needs  of  whom  for 
the  uses  to  which  such  water  was  applied  in  effecting  an 
appropriation  thereof,  may,  with  reasonable  sufficiency 
and  efficiency,  be  supplied  by  the  water  which,  under 
and  by  virtue  of  such  right  of  carriage  of  water,  is  cus- 
tomarily diverted,  conveyed  or  stored  by  means  of  such 
works,  and  touching  any.  abandonment  or  loss  of  the 
right  of  carriage  of  such  water,  or  the  right  of  employ- 
ment of  such  water,  and  touching  any  other  matter  or 
thing  which  may  be  set  down  in  the  order  of  the  Court 
as  a  proper  matter  of  inquiry ;  Provided,  That  the  decree 
had  pursuant  to  the  Eighth  Article  of  this  act  establish- 
ing the  rights  and  priorities  of  the  several  carriers  of 
water  in  such  Water  Division,  shall  be  deemed  and 
taken  to  be  conclusive,  as  between  the  proprietors  of 
such  works  and  those  entitled  to  enjoy  and  use  the 
waters  therefrom,  as  to  the  maximum  capacity  of  such 
works,  unless  it  shall  be  made  to  appear  that  subsequent 
to  the  entry  of  such  decree  such  works  have  been  en- 
larged. 

SEC.  7.  Every  such  Referee  shall,  before  entering 
upon  the  discharge  of  his  duties  under  such  appointment, 
file  in  the  office  of  the  Clerk  of  the  Court  the  oath  re- 
quired by  the  eighth  Article,  and  at  the  several  times 
and  places  named  in  the  order  of  the  Court  in  that  be- 
half, shall  attend  and  hear  and  reduce  to  writing  all 
testimony  which  may  be  offered  by  any  person  touching 
the  matters  named  in  the  order  of  the  Court  in  that  be- 


MINORITY    RKl'okT.  2o9 

half,  and  shall  in  all  respects  touching  such  hearing 
proceed  in  manner  as  specified  in  the  eighth  Article  for 
the  government  of  the  Referee  therein  mentioned,  so 
is  such  requirements  can  be  made  reasonably  ap- 
plicable. 

SEC.  8.  Any  person  claiming  to  be  in  any  manner 
entitled  to  have,  use  or  enjoy  any  part  or  share  of  the 
waters  at  any  time  diverted,  conveyed  or  stored  by 
means  of  such  works,  may  in  person  or  by  counsel  ap- 
pear before  the  Referee  and  present  testimony  touching 
his  claim  in  that  behalf  and  the  claim  made  by  or  in 
behalf  of  any  other  person,  and  cross-examine  the  wit- 
nesses produced  by  any  other  person,  and  object  to  any 
testimony  offered  by  or  in  behalf  of  any  other  person. 

SEC.  9.  Upon  the  completion  of  the  testimony 
before  him  the  Referee  shall  file  the  depositions  and  all 
documentary  evidence  produced  before  him  in  the  office 
of  the  Clerk  of  the  Court,  together  with  his  report  of  his 
actings  and  doings  as  such  Referee,  and  the  Court  or 
Judge  thereof  shall  thereupon  appoint  a  day  when 
exceptions  thereto  will  be  heard,  and  at  any  time  prior 
to  the  day  so  appointed,  or  afterward  by  leaf  of  the 
Court  any  person  may  file  exceptions  to  any  of  the  testi- 
mony heard  before  the  Referee,  or  to  any  of  the  proceed- 
ings of  the  Referee  in  or  about  refusing  to  receive  any 
testimony  or  denying  any  persons  reasonable  oppor- 
tunity to  be  heard;  and  the  Court,  at  the  day  appointed 
for  hearing  such  exceptions,  shall  proceed  in  like 
manner  as  provided  in  the  eight  Article,  touching  the 
report  of  the  Referee  therein  mentioned,  and  may,  if  he 
shall  deem  it  necessary,  order  a  further  reference  of  the 
matter  to  the  same  or  another  Referee  or  hear  further 
testimony  in  open  Court  upon  some  day  proper  and 
convenient,  by  him  appointed  for  the  purpose. 

SEC.  10.  Whenever  any  testimony  shall  be  heard  in 
open  Court  the  same  shall  be  at  the  time  reduced  to 
writing  and  certified  by  the  Court,  and  together  with  the 


2(K)  MINORITY   REPORT. 

report  of  the  Referee  shall  be  deemed  and  taken  to  be 
part  of  the  record  in  the  said  cause. 

SEC.  ii.  After  the  testimony  shall  have  been  com- 
pleted and  all  exceptions  to  the  report  of  the  Referee 
determined,  the  Court  shall  appoint  some  convenient 
day,  not  less  than  thirty  days  thereafter,  for  final  hearing, 
and  shall  cause  a  notice  of  such  final  hearing  and  the 
time  and  place  appointed  therefor  to  be  published  in  at 
least  one  public  newspaper  in  each  County  wherein  the 
said  works  may  be  situate,  or  wherein  any  part  of  the 
waters  thereby  diverted,  conveyed  or  stored  may  be 
customarilly  used. 

SEC.  12.  Upon  final  hearing,  the  Court  shall  by  its 
decree  ascertain  and  determine: 

First — The  name  of  each  consumer  or  person  entitled 
to  apply  to  beneficial  uses  any  of  the  water  diverted, 
conveyed  or  stored  under  any  right  of  carriage  of  water 
by  means  of  such  works,  and  the  date  of  employment 
of  water  to  the  enjoyment  of  which  any  such  person  is 
entitled,  together  with  the  extent  thereof,  specifying 
the  same  as  nearly  as  may  be  in  cubic  feet  per  second  or 
in  acre  feet,  as  may  be  the  more  reasonably  consistent 
with  the  custom  of  governing  the  distribution  of  water 
from  such  works,  and  designating  the  period  or  periods 
in  each  year  within  which  or  during  which  each  con- 
sumer of  water  is  entitled  to  the  use  of  such  water  to 
the  extent  of  his  necessities  therefor; 

Second — The  lands,  mine,  mill,  factory  or  other 
works  for  the  irrigation  or  operation  of  which  the  water 
employed  by  each  of  such  persons  is  appurtenant, 
except  as  hereinafter  provided  in  section  thirteeen  of 
this  Article; 

Third — The  names  of  those  enjoying  the  earliest 
rights  of  employment  of  water  diverted,  conveyed  or 
stored  by  means  of  such  works,  under,  and  by  virtue  of 
such  right  of  carriage  of  water,  to  the  number  whose  needs 


MINORITY    RICroRT.  261 

therefor,  for  the  uses  to  which  such  water  was  applied 
in  affecting  an  employment  thereof,  may,  with  reasonable 
efficiency  and  sufficiency,  be  supplied  by  the  waters  cus- 
tomarily conveyed  or  stored  under  such  right  of  carriage, 
and  who  shall  in  times  of  scarcity  suffer  a  proportional 
diminution  of  the  water  to  which  they  are  entitled. 

SEC.  13.  Nothing  in  this  article  contained  shall  be 
construed  so  as  to  require  the  Court  to  which  by  this 
act  jurisdiction  is  committed,  to  determine  and  settle 
the  rights  and  priorities  of  appropriators  of  water, 
to  name  the  users  of  water  in  any  city  or  town, 
or  declare  appurtenant  to  any  lands  or  works  the  water 
applied  to  the  uses  of  the  inhabitants  of  any  city  or 
town  or  to  limit  the  annual  period  during  which  con- 
sumers of  water  for  irrigation  shall  be  entitled  to  the 
use  thereof,  in  the  absence  of  any  agreement  to  the 
contrary. 

SEC.  14.  Costs  shall  be  adjudged  in  such  cases  as  to 
the  Court  shall  seem  equitable. 

SEC.  15.  Appeals  and  writs  of  error  shall  lie  for  re- 
viewing any  such  final  decree  in  like  manner  as  pre- 
scribed by  the  eighth  article;  and  such  appeals  shall  be 
prosecuted  and  proceeded  in  as  therein  prescribed. 

SEC.  16.  The  Clerk  of  the  Court  wherein  any  such 
decree  is  rendered,  shall,  within  thirty  days  after  the 
rendering  of  such  decree,  cause  a  transcript  or  tran- 
scripts thereof  to  be  made,  and  shall  certify  to  the  cor- 
rectness of  the  same  under  his  seal  of  office,  and  shall 
file  for  record  one  of  such  transcripts  so  certified  with 
the  County  Clerk  of  each  county  wherein  such  works 
may  be  situate. 

SEC.  17.  The  County  Clerk  of  each  county  with 
whom  shall  be  filed  a  transcript  of  any  such  decree,  duly 
certified  as  above  provided,  shall  be  entitled  to  like  fees 
for  recording  the  same  as  for  recording  conveyances  of 
land,  and  such  fees  shall  be  taxed  as  other  costs  in  said 


262  MINORITY   REPORT. 

cause  and  shall  be  transmitted  by  the  Clerk  of  said 
Court  to  the  County  Clerks  wherein  such  transcripts  are 
recorded. 


ARTICLE  VII. 

OF  WATER   DIVISIONS    AND    WATER  DISTRICTS. 

Same  as  Article  VII.  of  the  Majority  Report. 


ARTICLE  VIII. 

OF   THE   ADJUDICATION   OF    RIGHTS    AND    PRIORITIES   OF    RIGHT   TO 
DIVERT,    CONVEY   OR   STORE  WATER. 

SECTION  i.  Exclusive  jurisdiction  for  the  ascertain- 
ment and  settlement  of  the  several  rights  and  priorities 
of  right  of  persons  interested,  either  as  carrier  or  con- 
sumer, in  water  at  any  time  appropriated,  is  hereby  con- 
ferred upon  the  following  courts  within  the  several  Water 
Divisions;  that  is  to  say:  For  the  South  Platte  Division, 
upon  the  District  Court  of  the  County  of  Weld  ;  for  the 
Arkansas  Division,  upon  the  District  Court  of  the 
County  of  Pueblo  ;  for  the  Rio  Grande  Division,  upon 
the  District  Court  of  the  County  of  Conejos  ;  for  the 
San  Juan  Division,  upon  the  District  Court  of  the  County 
of  La  Plata  ;  for  the  Grand  River  Division,  upon  the 
District  Court  of  the  County  of  Garfield;  for  the  White 
River  Division,  upon  the  District  Court  of  the  County 
of  Rio  Blanco;  for  the  North  Platte  Division,  upon  the 
District  Court  of  the  County  of  Larimer;  for  the  Repub- 
lican Division,  upon  the  District  Court  of  the  County 
of  Kit  Carson. 

Sections  2  to  5  inclusive  are  the  same  as  sections  2  to 
5  inclusive  of  Article  VIII.  of  the  Majority  Report. 

SEC.  6.  The  proprietors  of  any  ditch,  conduit,  reser- 
voir or  other  works,  constructed  or  used  for  the  diver- 
sion, conveyance  or  storage  of  water,  desiring  to  procure 
an  adjudication  of  their  rights  to  the  carriage  of  water. 


MINORITY    Ki:roRT. 

shall  cause  such  works  lo  be  measured  and  rated,  or  the 
capacity  thereof  be  estimated  as  required  by  this  act,  and 
the  certificate  of  such  measurement  and  rating  or  estimate 
of  capacity  to  be  approved  by  the  State  Engineer,  and  shall 
also  procure  a  survey  and  map  of  such  works  to  be  made 
>>me  Assistant  State  Engineer  or  Deputy  Irrigation 
Engineer,  by  him  employed  for  that  purpose.  Every  such 
Assistant  State  Engineer  or  Deputy  Irrigation  Engineer 
shall,  at  the  time  thereof,  take  in  writing  careful  notes 
of  every  such  survey  by  him  made,  showing  in  each 
case  the  name  of  such  ditch,  conduit,  reservoir  or  other 
works,  the  name  or  names  of  the  proprietors  thereof,  or 
of  the  association  or  corporation  which  is  proprietor 
thereof,  the  date  of  such  survey,  the  names  of  those 
assisting  therein,  and  showing,  either  by  reference  to  the 
public  surveys,  or  where  the  said  works  are  on  unsurveyed 
lands,  to  conspicuous  and  permanent  natural  monuments, 
the  place  of  the  head  of  such  ditch,  conduit  or  other  works, 
the  stream  or  sources  of  supply  wherefrom  water  is 
taken',  the  places  of  the  head-gates  and  rating  fliTme,  the 
width,  depth  and  grade  of  such  ditch,  or  conduit,  at  so 
many  places  as  may  be  necessary  to  reasonably  ascertain 
the  carrying  capacity  thereof,  the  greatest  depth  of  water 
which  can  safely  be  carried  at  each  of  such  places,  and 
the  form  of  the  cross-sections  to  high-water  mark,  the 
courses  and  distances  of  such  ditch,  conduit  or  other 
works  as  surveyed, "the  several  sections  of  land,  accord- 
ing to  the  public  surveys,  over  which  the  same  is  con- 
structed, the  location  of  every  such  reservoir  and  the 
exterior  line  thereof  when  filled  to  high-water  mark,  as 
nearly  as  may  be,  the  capacity  of  such  reservoir,  a 
description  of  the*  embankment  thereof,  the  places  of 
inlet  and  outlet,  and  the  wasteways  therefrom,  and  any 
other  matter  or  thing  which  the  State  Engineer  may  re- 
quire to  be  set  down  in  such  notes  of  survey.  Every  such 
Assistant  State  Engineer  or  Deputy  Irrigation  Engineer, 
shall  also, prepare  a  plat  or  map  of  every  such  ditch, 
conduit,  reservoir  or  other  works,  by  him  surveyed,  as 


L>64  MINORITY   REPORT. 

aforesaid,  and  shall,  as  soon  as  may  be  after  the  comple- 
tion thereof,  transmit  to  the  State  Engineer  a  copy  of 
said  field  notes  and  of  the  said  map,  with  affixed  thereto 
his  affidavit  that  the  survey  therein  represented  was  by 
him  actually  made  in  the  field  at  the  date  set  down 
therein  ;  that  the  same  is  a  true  copy  of  the  field  notes 
of  such  survey  by  him  taken  at  the  time,  and  that  the 
places,  courses,  distances,  grades  and  cross-sections  of 
saitf  ditch  are  truly  set  forth  in  the  said  notes,  as  he 
verily  believes. 

Sections  7  to  n,  inclusive,  are  the  same  as  Sections 
7  to  n,  inclusive,  of  Article  VIII.  of  the  Majority  Re- 
port. 

SEC.  12.  Whenever  the  proprietors  of  any  ditch, 
conduit,  reservoir  or  other  works  for  the  diversion,  con- 
veyance or  storing  of  water,  or  any  employer  of  water 
diverted,  conveyed  or  stored  by  means  of  such  works, 
shall  clause  the  same  to  be  meesured  and  rated  by  some 
Assistant  State  Engineer  or  Deputy  Irrigation  Engineer 
in  pursuance  hereof,  and  shall  cause  duplicates  of  the 
certificates  of  such  measurement  and  rating  verified  by 
such  Engineer,  to  be  transmitted  to  the  State  Engineer, 
the  State  Engineer  shall  forthwith  examine  such  certifi- 
cate of  measurement  and  rating,  and  if  he  shall  approve 
the  same  shall  cause  one  copy  thereof  certified  by  him 
under  his  seal  of  office  to  be  transmitted  to  the  Clerk  of 
the  District  Court  to  which  in  pursuance  of  this  act 
jurisdiction  to  adjudge  and  settle  the  rights  and  priori- 
ties of  the  several  appropriators  of  water  in  such  Water 
Division  is  committed,  and  the  other  thereof  he  shall 
file^  record  and  carefully  preserve  in  his  office.  If  the 
State  Engineer  shall  disapprove  the  measurement  and 
rating  of  any  ditch,  conduit,  reservoir  or  other  works,  he 
shall  cause  the  fact  of  such  disapproval  to  be  certified  to 
the  superintendent  of  such  ditch,  conduit  or  other  works, 
and  shall  direct  further  measurement  and  rating  of  such 
works,  either  by  the  same  or  other  Assistant  State  Engi- 


MINORITY    RKl'ORT. 

neer  or  Deputy  Irrigation  Engineer,  as  he  may  specify. 
Upon  the  completion  of  such  second  measurement 
and  rating,  the  officer  acting  in  that  behalf  shall 
make  his  certificate  thereof,  setting  forth  the  same  mat- 
ters above  prescribed,  and  shall  transmit  the  same  to  the 
State  Engineer,  and  the  State  Engineer  shall  take  like 
proceedings  in 'respect  of  such  second  certificate  as  pre- 
scribed in  respect  of  the  first.  Whenever  it  shall  appear 
to  the  satisfaction  of  the  State  Engineer  that  the  waters 
of  the  stream  or  source  of  supply  wherefrom  any  ditch, 
conduit  or  reservoir  receives  water,  are  so  low  at  the 
head  of  the  ditch,  conduit  or  other  works,  that  the  same 
cannot  be  filled,  or  that  for  any  reason  the  same  cannot 
be  measured  and  rated,  as  hereby  required,  the  pro- 
prietors of  such  works  may  cause  the  same  to  be  meas- 
ured by  not  less  than  three  disinterested  persons  (either 
Assistant  State  Engineers  or  Deputy  Irrigation  En- 
gineers), and  the  capacity  thereof  estimated  and  certified 
by  such  three  persons  and  their  certificate  of  such  meas- 
urement and  estimate  of  the  capacity  of  such  works 
verified  by  them  and  approved  by  the  State  Engineer, 
shall  be  of  like  effect  as  the  certificate  of  measurement 
and  rating  hereinabove  first  required  ;  Provided,  how- 
ever^ That  the  State  Engineer  shall  not  accept  or  ap- 
prove any  certificate  of  estimate  as  hereinabove  provided 
without  first  ascertaining  to  his  own  satisfaction  the  im- 
possibility of  rating  such  ditch,  conduit  or  other  works. 

SEC.  13.  The  proprietors  of  every  ditch,  conduit, 
reservoir  or  other  works  for  the  diversion,  conveyance 
or  storage  of  water  within  any  Water  Division,  desiring 
the  establishment  of  their  right  of  carriage  of  water  as 
herein  provided  shall  file  with  the  Clerk  of  the  District 
Court,  to  which  by  this  act  is  committed  jurisdiction  for 
ascertaining  and  settling  the  rights  and  priorities  of  the 
several  carriers  and  consumers  of  water  in  such  Water 
Division,  a  statement  of  their  claim  in  that  behalf, 
entitled  to  the  proper  Court  and  "In  the  matter  of 


266  MINORITY   REPORT. 

the   adjudication    of    the    rights    and    priorities  of  the 

carriers  of  water  in  the Water  Division 

of  the  State  of  Colorado;"  which  statement  shall  set 
forth  the  names  of  the  proprietors  of  such  ditch,  conduit 
or  other  works;  the  name  of  the  superintendent  thereof, 
appointed  in  pursuance  of  this  act  and  the  post-office 
address  of  such  superintendent;  all  names  by  which 
such  ditch,  conduit,  reservoir  or  other  works  hath  there- 
tofore been  kno\Vn,  and  the  name  by  which  the  same  is 
then  and  thereafter  to  be  known;  the  time  when  such 
works  were  commenced  and  completed,  fixing  the  day, 
month  and  year  as  near  as  may  be;  the  time  of  com- 
mencement and  completion  of  each  enlargement  or  ex- 
tension thereof;  the  purposes  to  which  the  water  diverted, 
conveyed  or  stored  by  means  of  such  works  are  applied, 
and  the  number  of  acres  of  land,  if  any,  thereto- 
fore actually  irrigated  by  water  from  such  works  as 
originally  constructed,  the  increased  area,  if  any, 
irrigated  after,  each  enlargement  and  the  number  of 
acres  proposed  to  be  irrigated  therefrom;  the  particu- 
lar months  or  parts  of  months  in  each  year  during 
which  the  employers  of  water  by  means  of  such 
works  claim  to  be  entitled  to  the  use  of  the  water  di- 
verted, conveyed  or  stored  by  means  thereof,  and  the 
times  when  in  each  year,  the  proprietors  of  any  such 
reservoir  have  theretofore  customarily  filled  the  same. 
Every  such  statement  shall  be  subscribed  by  some  one 
or  more  of  the  proprietors  of  such  ditch  j  conduit  or 
other  works,  or  the  superintendent  or  manager  thereof. 

SEQ.  14.  At  any  time  after  the  first  day  of  Septem- 
ber, A.  D.  1891,  any  person  claiming  to  be  interested  in 
the  question,  as  the  owner  of  any  ditch,  conduit  or  res- 
ervoir>  for  the  diversion,  conveyance  or  storing  of  water 
in  such  Water  Division,  or  as  a  consumer  of  water 
therefrom,  may  present  to  the  District  Court  having 
jurisdiction  in  such  Water  Division  pursuant  hereto, 
his  petition  or  application  in  writing,  praying  the  Court 


MINORITY    REPORT.  267 

to  proceed  to  an  adjudication  of  the  rights  and  priorities 
of  right  to  the  carriage  of  water  between  the  several 
carriers  of  water  in  such  division. 

Section  15  is  the  same  as  section  15  of  Article  VIII. 
of  the  Majority  Report,  with  the  omission  of  the  words 
"for  irrigation." 

SRC.  1 6.  Every  inhabitant  of  the  State  of  Colorado, 
and  all  other  persons  in  any  manner  interested  as  owner 
of  any  works  in  this  State,  for  the  diversion,  convey- 
ance or  storing  of  water  or  as  a  carrier  or  user  of  the 
water  diverted,  conveyed  or  stored  by  means  of  such 
works,  shall  be  deemed  in  law  to  have  notice  of  such 
petition,  and  to  be  party  thereto,  and  shall  be  entitled 
to  attend  either  in  person  or  by  counsel  before  the  Court 
or  Judge,  and  be  heard  to  show  cause  against  such  peti- 
tion and  touching  the  appointment  of  such  Referee;  as 
also  either  in  person  or  by  counsel,  before  the  Referee 
appointed  in  pursuance  hereof,  and  to  produce  evidence 
against  the  allowance  of  any  right  of  carriage  of  water 
claimed  by  any  other  person  or  corporation  in  such 
Water  Division,  and  shall  be  entitled  to  cross-examine 
the  witnesses  produced  in  behalf  of  any  other  person 
or  corporation  touching  any  right  of  carriage  or  right  of 
appropriation  of  water,  and,  compliance  with  the  pro- 
visions of  this  act,  touching  the  survey,  measurement, 
rating  or  estimate  of  any  works  by  means  whereof  any 
right  of  carriage  of  water  is  claimed  in  his  behalf,  and 
touching  the  filing  of  the  statement  of  claim  in  that 
behalf,  being  shown;  shall  be  allowed  to  produce  evi- 
dence before  such  Referee  in  support  of  such  claim  of 
a  right  of  carriage  of  water,  and  shall  be  entitled  to  at- 
tend and  be  heard  in  such  District  Court  and  before  such 
Referee  at  all  proceedings  nad  or  taken  in  pursuance  of 
this  act. 

SEC.  17.  Upon  the  filing  of  such  petition,  the  Court 
to  which  jurisdiction  is  hereby  committed  in  that  behalf, 
shall  be  deemed  to  be  invested  with  jurisdiction  to  set- 


MINORITY   REPORT. 


tie  and  adjudicate  the  rights  and  priorities  of  the  sev- 
eral carriers  of  water  within  such  division,  to  divert, 
convey  or  store  water,  and  such  Court  or  the  Judge 
thereof,  at  the  time  and  place  specified  in  the  order  in 
that  behalf,  if  due  service  of  the  said  citation  hath  not 
been  had,  shall  continue  the  matter  to  another  day  and 
direct  the  issue  of  an  alias  citation  or  citations,  as  may 
be  necessary.  Further  continuances  of  the  matter  may 
be  made  from  time  to  time,  and  pluries  citations  issued 
until  service  be  had  upon  all  persons  and  corporations 
above  specified  to  be  served  therewith.  Whenever  it 
shall  appear  to  the  Court  that  due  publication  of  said 
citation  and  service  thereof  upon  all  persons  and  corpor- 
ations who  have  filed  with  the  Clerk  of  the  Court  their 
statement,  as  required  by  the  thirteenth  section  of  this 
article,  hath  been  had,  the  Court  or  the  Judge  thereof 
shall  hear  all  persons  who  may  attend  to  oppose  the  said 
petition,  and  unless  cause  be  shown  to  the  contrary, 
appoint  some  fit  and  proper  person  as  Referee  to  hear 
and  report  to  the  Court  such  evidence  as  may  be  pro- 
duced before  him  touching  the  appropriations  of  water, 
and  the  rights  and  priorities  of  the  several  carriers  of 
water  in  such  Water  Division,  and  shall  by  such  order 
fix  the  time  and  places  where  such  Referee  shall  attend 
in  each  Water  District  of  such  Division  to  hear  evi- 
dence touching  such  appropriations  and  rights  of  car- 
riage. 

Sections  1  8  to  23  inclusive  are  the  same  as  sections  18 
to  23  inclusive  of  Article  VIII.  of  the  Majority  Report. 

SEC.  24.  It  shall  be  the  duty  of  such  attorney  forth- 
with upon  his  appointment,  to  prepare  from  the  records 
in  the  office  of  the  Clerk  of  such  Court,  a  table  of  the 
several  ditches,  conduits,  reservoirs  and  other  works  in 
such  Water  Division,  for  the  diversion,  conveyance  or 
storing  of  water,  as  may  appear  by  the  statements  of  the 
proprietors  thereof  filed  in  the  office  of  such  Clerk  as 
required  by  this  act,  setting  forth  the  names  of  the 


MINORITY  ki;r< 

proprietors  thereof,  respectively,  thename  of  the  superin- 
nt  thereof,  and  the  several  matters  required  to  be 
set  down  in  such  statement,  and  the  capacity  of  such 
works  as  shown  by  the  certificate  of  measurement  and 
rating  thereof,  on  file  in  the  office  of  the  Clerk 
of  such  Court;  and  to  otherwise  familiarize  himself 
with  the  said  ditches,  conduits,  reservoirs  and 
other  works  as  fully  may  be.  Whenever  in  any  case  it 
shall  appear  to  such  attorney  that  the  proprietors 
of  any  such  works  claim  by  the  statement  filed 
with  the  Clerk  of  the  Court  in  pursuance  hereof,  an 
excessive  amount  of  water,  or  that  any  such  statement 
is  false  in  any  particular,  he  shall  use  his  best  endeavors 
to  procure  and  produce  before  the  Referee  at  the  proper 
time  and  place,  evidence  of  the  falsity  of  such  claim  in 
that  behalf,  and  to  that  end  may  call  upon  the  State 
Engineer  to  cause  such  works  to  be  measured  and  rated 
or  the  capacity  thereof  estimated  in  the  manner  herein- 
before provided.  He  shall  attend  at  all  sittings  of  the 
Referee  and  cross  examine  on  behalf  of  the  public  when- 
ever it  shall  appear  to  him  necessary  all  witnesses  pro- 
duced by  any  claimant  touching  his  appropriation,  and 
whenever  it  shall  appear  to  him  that  any  improper  testi- 
mony is  offered  or  produced  before  such  Referee,  shall 
at  once  object  thereto  and  cause  his  objections  in  that 
behalf  to  be  noted  by  the  Referee,  and  shall  in  all  things 
to  the  best  of  his  ability  cause  the  truth  of  the  matter 
touching  every  such  claim  to  be  made  to  appear  by 
proper  testimony  before  the  Referee.  He  shall  attend 
before  the  District  Court  upon  the  hearing  of  the  matter 
upon  the  report  of  the  Referee,  and  there  present  and 
argue  all  objections  by  him  made  to  any  improper  testi- 
mony presented  before  the  Referee,  and  shall  fully  and 
fairly  advise  the  Court  to  the  best  of  his  ability  as  to  the 
rights  of  the  several  claimants,  so  that  no  injury  be  done 
to  any  claimant,  nor  any  right  to  the  carriage  of  an 
excessive  amount  of  water  or  false  date  of  priority  be 
allowed  to  any  claimant. 


270  MINORITY   REPORT. 

Section  25  is  the  same  as  section  25  of  Article  VIII. 
of  the  Majority  Report. 

SEC.  26.  '  At  the  several  times  and  places  mentioned 
in  such  order  or  orders,  the  Referee  so  appointed  shall 
attend  and  shall  hear  and  reduce  to  writing  all  testimony 
which  may  be  offered  by  any  person  authorized  in  pur- 
suance hereof,  touching  the  date  of  commencement  and 
completion  of  each  ditch,  conduit,  reservoir  or  other 
works  theretofore  constructed  in  such  Water  District, 
and  each  enlargement  thereof,  if  any,  and  the  amount  of 
water  diverted  or  stored  by  means  of  any  such  works,  or 
any  enlargement  thereof  and  actually  applied  to  ben- 
eficial uses,  and  the  periods  and  times  for  which,  during 
each  year,  the  waters  may  have  been  used  from  such 
works,  or  any  of  them  for  irrigation  or  otherwise,  and 
the  lands  irrigated  thereby,  or  touching  any  other  mat- 
ter or  thing  which  may  tend  to  show  the  fact  or  date  of 
the  employment  of  water  by  any  consumer,  effecting 
the  right  of  carnage  of  water  by  any  carrier  of  water, 
the  amount  of  such  employment,  the  periods  and  times 
of  the  actual  enjoyment  and  use  of  the  water  for  irriga- 
tion or  otherwise,  or  touching  the  failure  of  the  employ- 
ers of  the  water  diverted,  conveyed  or  stored  by 
means  of  any  ditch,  conduit  or  other  works,  to  apply 
the,  same  to  beneficial  uses  with  reasonable  continuity; 
Provided,  however,  That  (save  by  leave  of  the  Court  or  the 
Judge  thereof)  no  evidence  shall  be  given  before  any  such 
Referee  of  the  appropriation  of  waters  by  means  of  any 
ditch,  conduit,  reservoir  or  other  works,  unless  the  pro- 
prietors of  such  works  shall,  before  the  day  first  appointed 
for  the  sitting  of  the  Referee  in  the  Water  District  where 
in  such  works  may  be  situate,  have  filed  the  statement 
required  by  the  thirteenth  section  of  this  article,  nor 
unless  such  proprietors  shall,  before  the  day  named, 
have  caused  such  works  to  be  surveyed,  measured  and 
rated  by  the  State  Engineer  or  some  Deputy  Irrigation 
Engineer,  or  the  capacity  thereof  to  be  estimated  in  pur- 


MINORITY    REPORT,  -J71 

suance  liereof,  nor  unless  the  map  and  field  notes  of 
such  survey  and  the  certificate  of  such  rating  or  esti- 
mate, with  the  approval  of  the  State  Engineer,  shall,  in 
pursuance  hereof,  be  certified  to  and  filed  in  the  office 
of  the  Clerk  of  the  District  Court,  upon  which,  by  this 
act,  jurisdiction  is  conferred  to  adjudicate  the  rights  and 
priorities  of  the  several  appropriators  of  water  within 
the  Water  Division  wherein  such  works  are  situate,  as 
by  this  act  above  required;  And,  provided  further, 
That  nothing  herein  contained  shall  be  construed  as 
requiring  the  Court  to  disregard  the  claims  of  any  per- 
son or  corporation  having  in  progress  any  ditch,  conduit 
or  other  works  for  the  appropriation  of  water  not  then 
completed,  or  whereby  the  waters  have  not  theretofore 
been  appropriated  to  the  full  capacity  of  such  works, 
but  the  rights  of  all  such  persons  shall  be  saved  as  pro- 
vided in  the  thirty-fifth  section  of  this  article. 

SEC.  27.  Every  such  Referee  shall  have  power  to 
administer  oaths  and  issue  subpoenas  for  witnesses  and 
subpcenoes  duces  tecum,  which  subpoenas  may  be  served 
by  any  person  whomsoever,  and  may  require  the  witness 
to  appear  at  any  place  appointed  by  the  order  of  the 
District  Court  for  the  attendance  of  such  Referee  and  at 
such  day  and  hour  as  may  be  named  therein.  He  shall 
proceed  in  all  respects  in  the  examination  of  witnesses 
as  is  or  may  be  provided  by  law  in  the  case  of  the  taking 
of  the  deposition  of  a  resident  witness  in  causes  pending 
in  the  District  Court;  Provided,  however,  That  unless 
any  person  attending,  shall,  touching  any  question  or 
matter,  make  request  to  the  contrary,  the  deposition  of 
every  witness  shall  be  reduced  to  writing  in  the  narra- 
tive form.  The  Referee  shall  receive  all  deeds,  certifi- 
cates and  other  documents  which  may  be  offered  by  any 
person  and  return  the  same  with  his  report;  or  in  case 
any  person  shall  produce  in  evidence  any  book,  or  docu- 
ment in  writing  which  shall  not  be  under  the  control  of 
the  party  desiring  the  benefit  thereof,  or  which  he  shall 


2  <  2  MINORITY   REPORT. 

desire  to  retain  in  his  own  custody,  such  Referee  shall 
make  or  cause  to  be  made  a  true  copy  of  the  parts 
demanded,  and  shall  certify  the  same  and  transmit  such 
copies,  together  with  the  evidence  concerning  the  same, 
as  part  of  the  evidence  in  the  case.  He  shall  also  note 
at  the  proper  place  all  objections  which  may  be  made  by 
any  person  to  any  question  propounded  to  any  witness, 
or  to  any  documentary  evidence  offered  by  any  person, 
and  certify  the  same  in  connection  with  such  testimony. 
He  shall  also,  whenever  he  shall  deem  it  necessary  for 
the  ascertainment  of  the  truth  touching  any  point 
involved  in  the  matter  in  question,  examine  any  witness 
produced  before  him  so  as  to  ascertain  and  make  clear 
as  far  as  possible  the  date  of  commencement  of  each 
ditch,  -conduit,  reservoir  or  other  works,  the  original 
capacity  thereof,  the  date  of  each  enlargement  and  in- 
creased capacity  thereby  occasioned,  the  time  spent  in 
the  construction  of  such  works  and  each  enlargement 
thereof,  the  amount  of  water  actually  carried  in  such 
ditch,  conduit  or  other  works,  or  stored  in  such  reservoir 
as  originally  constructed,  and  after  each  enlargement,  the 
time  when  the  waters  diverted  thereby  were  appropriated 
and  applied  to  beneficial  uses,  the  nature  of  the  work  as 
to  difficulty  of  construction,  and  all  other  facts  which 
may  show  or  tend  to  show  the  respective  rights  of  the 
proprietors  of  the  several  ditches,  conduits  or  othejr  works 
in  such  Water  Division  in  respect  to  the  water  diverted, 
conveyed  or  stored  by  such  works  or  by  any  enlarge- 
ment thereof,  and  their  several  priorities  of  right  to  the 
carriage  of  such  water  and  the  extent  to  which,  and  the 
periods  during  which,  by  means  of  such  ditches,  con- 
duits, reservoirs  or  other  works  they  are  severally  enti- 
tled to  effect  the  carriage  of  such  waters. 

SEC.  28.  Every  such  Referee  shall  give  reasonable 
opportunity  to  all  persons  entitled  to  be  heard  before 
him,  to  attend  and  present  testimony  touching  their  sev- 
eral rights  and  priorities  in  respect  of  the  carriage  of 


MINORITY   REPORT.  -J7:1. 

w.iU-r  \vitliin  such  Water  Division.      X<  >nv  shall 

be  heard  or  received  touching  any  ditch,  conduit  or 
reservoir,  or  anv  appropriation  claimed  or  any  right  to 
tlu-  cvnia^e  of  water  by  nu-ans  or  in  respect  thereof, 
save  in  the  Water  District  wherein  is  situate  the  head 
of  such  ditcli  or  conduit,  or  the  head  of  the  ditch,  or 
conduit  supplying  such  reservoir,  unless  by  special  order 
of  the  Referee  on  cause  shown  and  after  notice  to  all 
persons  interested  in  ascerting  or  opposing  such  claim, 
which  notice  shall  be  in  writing,  and  shall  specify  the  day, 
hour  and  place  when  such  testimony  shall  be  produced, 
and  shall  be  served  at  least  six  days  prior  to  the  time 
appointed  for  producing  such  testimony;  but  the 
Referee  may,  when  the  time  limited  for  his  attendance 
at  any  place  named  in  the  order  of  the  Court  shall  expire 
without  full  hearing  of  all  testimony  desired  to  be  pro- 
duced before  him  by  any  person  entitled  to  be  heard, 
adjourn  the  further  taking  of  testimony  proposed  to  be 
offered,  to  any  other  time  and  place  appointed  in  the 
order  of  the  Court  in  that  behalf  for  his  attendance  in 
the  same  Water  Disteict;  and  at  such  last  named  place 
may  continue  until  all  testimony  shall  be  taken;  or 
the  Court,  or  the  Judge  thereof,  may  direct  the  further 
attendance  of  the  Referee  at  the  place  of  his  atten- 
dance where  such  testimony  was  offered.  The 
Referee  shall  cause  all  testimony  heard  by  him  to 
be  taken  down  or  copied  in  type-writing,  and  the  depo- 
sitions and  other  testimony  touching  each  particular 
ditch,  conduit,  reservoir  or  other  works,  or  the  appro- 
priation thereby  to  be  filed  and  preserved  as  one  file. 
He  shall  from  time  to  time,  as  the  hearing  proceeds, 
make  an  index  of  the  several  ditches,  conduits  and 
other  works  and  rights  claimed,  touching  which  testi- 
mony shall  be  offered,  so  that  the  same  may  be  conven- 
iently consulted  and  the  testimony  of  any  witness, 
touching  any  particular  claim,  readily  found,  and  such 
depositions  and  other  testimony  and  the  index  thereof 
he  shall  preserve  and  have  with  him  at  all  times  during 


274  MINORITY  REPORT. 

the  hearing,  and  during  all  such  times,  and  at  all  other 
convenient  and  reasonable  times  shall  allow  the  same 
to  be  inspected  and  seen  and  copies  or  extracts  thereof 
to  be  made  by  any  person  desiring  so  to  do,  and,  upon 
the  closing  of  the  testimony,  the  Referee  shall  return 
the  same  with  the  index  aforesaid  and  the  report  of  his 
actings  and  doings  in  the  premises  into  the  office  of  the 
Clerk  of  the  District  Court  wherein  he  was  appointed  as 
aforesaid,  and  shall  notify  the  Judge  of  such  Court,  if 
the  same  be  not  in  session,  of  the  fact  of  the  filing  of  his 
report. 

Sections  29  to  33,  inclusive,  are  the  same  as  sections 
29  to  33,  inclusive,  of  Article  VIII.  of  the  Majority 
Report. 

SEC.  34.  Upon  the  return  of  such  testimony,  such 
Court  or  the  Judge  thereof,  shall,  by  order  of  record,  ap- 
point a  day  for  the  final  hearing  of  the  matter  of  such 
petition,  which  shall  be  not  less  than  thirty  days  sub- 
sequent to  the  filing  of  the  report  of  the  Referee.  Any 
inhabitant  of  the  State  of  Colorado,  and  every  other 
person  in  any  manner  interested  as  owner,  lessee  or  oth- 
erwise, of  any  works  in  this  State  for  the  diversion,  con- 
veyance, or  storing  of  water,  or  as  a  carrier  or  consumer 
of  water  by  means  of  any  such  works,  may  in  person,  or 
by  counsel,  file  exceptions  to  the  report  of  any  such  Ref- 
eree, in  wh'ole  or  in  part,  or  may  complain  to  the  Court 
of  any  omission,  willful  neglect  or  oppression  on  the  part 
of  the  Referee,  whereby  such  party  shall  have  been 
aggrieved,  either  by  refusal  of  the  Referee  to  hear,  or 
reduce  to  writing  evidence  offered,  or  by  preventing 
reasonable  opportunity  to  produce  or  offer  such  evidence, 
or  by  receiving  improper  evidence  at  the  instance  of  any 
other  party;  and  the  State's  Attorney  for  any  such  Water 
Division  may  interpose  like  exceptions.  On  the  day  so 
appointed  for  hearing  the  Court  which  shall  then,  if  the 
same  be  not  in  one  of  the  regular  terms  thereof,  be 
deemed  to  be  sitting  in  special  term,  shall  hear  any  per- 


MINORITY    B 

sun  who  may  attend  for  thai  purpose,  either  in  person  or 
by  counsel,  touching  the  regularity  of  the  proceedings 
of  the  Referee,  and  shall  sustain  or  deny  all  exceptions 
filed  to  such  report  of  the  Referee  or  any  part  thereof, 
and  if  it  shall  appear  that  such  Referee  hath  proceeded 
irregularly  or  in  violation  of  the  provisions  of  this  act, 
or  hath  denied  to  any  person  any  right  secured  or 
intended  to  be  secured  hereby  in  the  matter  of  such  hear- 
ing, shall  appoint  some  other  Referee,  or  refer  the  mat- 
ter to  the  same  Referee  to  hear  such  testimony  as  may 
be  produced  by  any  particular  persons  or  corporations  in 
such  order  named  or  touching  any  particular  matter  in 
such  order  named,  or  to  permit  cross  examination  of  any 
witness  or  witnesses  in  such  order  mentioned,  and  fix 
the  time  and  place  for  the  attendance  of  such  Referee, 
and  of  all  persons  in  interest  before  him,  and  the 
time  when  he  shall  report,  and  shall  adjourn  the 
further  hearing  of  such  matter  until  the  time  so 
appointed  for  the  report  of  such  Referee,  and  upon 
such  further  report  shall  proceed  in  like  manner  as 
in  the  first  instance  until  satisfied  that  by  the  testi- 
mony heard  before  such  Referee  the  truth  of  the 
matter  touching  the  several  rights  of  carriage  of  water 
in  such  Water  Division,  has  been  ascertained;  or,  the 
Court  may  in  its  discretion,  suffer  or  direct  the  examina- 
tion of  witnesses'  in  open  Court  touching  the  right  of 
carriage  of  water  claimed  by  any  person  and  the  time 
and  extent  thereof,  or  the  uses  to  which  such  water  hath 
been  applied,  or  any  other  matter  or  thing  relevant  to 
the  adjudication  of  the  rights  and  priority  of  right 
among  the  several  carriers  of  water  in  such  Water  Di- 
vision, and  in  lieu  of  adjourning  the  hearing  of  such 
matter,  upon  any  second  reference  to  the  Referee,  or  the 
appointment  of  any  new  Referee,  the  Court  may,  in  its 
discretion,  proceed  with  the  hearing,  touching  the  rights 
of  any  person  or  corporation  not  affected  by  such  second 
reference.  And  upon  the  conclusion  of  the  hearing, 
after  the  final  report  of  the  Referee,  last  appointed  in  such 


276  MINORITY   REPORT. 

matter,  and  the  testimony  produced  to  the  satisfaction 
of  the  Court,  the  Court  shall  make  and  enter  its  decree, 
setting  fourth  the  date  and  extent  of  the  waters  lawfully 
diverted,  conveyed  or  stored  by  means  of  each  ditch, 
conduit,  reservoir  or  other  works,  as  originally  con- 
structed, and  the  date  and  extent  of  each  right  of  car- 
riage of  water  subsequently  or  by  means  of  any  subse- 
quent enlargement  thereof  acquired,  and  the  times  dur- 
ing which  the  proprietors  of  said  works  or  others  are 
entitled  to  divert,  convey  or  store  the  said  waters, 
and  the  place  of  the  diversion  of  such  waters  from 
the  natural  stream  or  other  source  of  supply  where- 
from  the  same  are  diverted;  Provided,  however,  That 
no  person  shall  in  such  decree  be  adjudged  or  de- 
creed to  be  entitled  to  effect  the  carriage  of  any  waters, 
the  right  of  carriage  of  which,  by  the  testimony  heard 
before  the  Referee  or  the  Court,  as  hereinbefore  speci- 
fied, shall  appear  to  have  been  abandoned,  or  which 
shall  not  by  such  testimony  appear  to  have  been  actually 
conveyed  or  stored  by  such  person,  or  by  others  to 
whose  right  he  hath  succeeded,  and  employed  by  such 
persons  or  others  using  and  enjoying  the  waters 
diverted,  carried  or  stored  by  means  of  such  works. 
In  every  such  decree  the  date  of  carriage  of  water  bv 
means  of  each  ditch  or  conduit,  and  the  extent 
to  which  the  proprietors  thereof,  or  carriers  of  water 
thereby,  are  entitled,  to  divert  and  convey  water,  shall 
be  designated  in  cubic  feet  per  second  of  time,  and 
the  appropriation  by  means  of  every  reservoir,  accord- 
ing to  the  cubic  contents  thereof,  to  the  extent  to  which 
the  proprietors  thereof  are  entitled  to  cause  the  same  to 
be  filled,  and  as  to  every  such  reservoir  every  such  de- 
cree shall  specify  the  number  of  times  in  each  year,  and 
the  particular  times  of  the  year,  and  the  months,  so  fat- 
as  practicable,  when  the  proprietors  of  such  reservoir  are 
entitled  to  fill  the  same.  In  every  such  decree  the  said  sev- 
eral rights  of  carriage  of  water  throughout  such  Water 
Division  shall  be  arranged  and  numbered  in  consecutive 


MINORITY    !  -J7. 

order,  according  to  the  dates  of  carriage  of  water, 
whether  tin-  right  of  carriage  of  water  be  made  by  the 
original  construction  of  the  ditch,  conduit  or  other 
works,  or  by  subsequent  enlargement  thereof,  or  other- 
wise, and  without  reference  to  the  particular  location  of 
such  works  in  the  Division,  or  whether  the  same  be 
taken  from  the  main  stream  or  the  tributaries  thereof. 

SKC.  35.  Whenever  in  such  proceedings  it  shall  be 
made  to  appear  that  any  person,  association  or  corpo- 
ration hath  theretofore  commenced,  and  hath  in  progress 
any  ditch,  conduit  or  other  works  for  the  diversion,  con- 
veyance or  storage  of  water,  but  hath  not  completed  the 
same,  or  that  if  the  same  be  completed  the  waters  di- 
verted thereby  hath  not  been  employed  to  the  full 
capacity  of  such  works,  and  that  a  reasonable  time  has 
not  elapsed  for  the  completion  and  utilization  of  such 
works,  and  for  the  full  employment  of  the  water  di- 
verted thereby,  such  decree  shall  be  made  with  a  saving 
of  the  rights  of  the  proprietors  of  such  works,  and  such 
proprietors  may  at  any  time  afterwards,  upon  first  pro- 
curing the  survey  and  maps  of  such  works  and  the  cer- 
tificate of  rating  or  estimate  of  capacity  hereinbefore  re- 
quired, and  the  approval  thereof,  and  certified  copies 
thereof,  to  be  filed  as  hereinabove  required,  upon  not 
less  than  thirty  days'  notice  to  the  several  proprietors 
of  the  ditches,  conduits  and  other  works  named  in  such 
decree  as  entitled  to  divert,  convey  or  store  water  in 
such  Water  Division  under  any  right  of  carriage  of  such 
water  acquired  subsequent  to  the  day  alleged  as  the  date 
of  commencement  of  the  works  of  such  petitioner,  their 
heirs  or  assigns,  and  due  proof  thereof  made,  apply  to 
such  District  Court  by  petition  to  establish  and  settle  by 
supplementary  decree  their  rights  in  that  behalf.  Such 
notice  may  be  made  returnable  either  in  term  time  or 
vacation.  The  Court  or  the  Judge  thereof,  at  the  time 
appointed  in  such  notice,  shall  either  hear  testimony  in 
open  Court  or  refer  the  matter  of  the  taking  of  testimony 


278  MINORITY   REPORT. 

to  a  Referee  appointed  for  that  purpose  with  such  par- 
ticular directions  as  to  him  may  seem  fit,  and  upon  full 
hearing  of  all  parties,  such  Court,  or  the  Judge  thereof 
in  vacation,  may  make  such  supplementary  decree 
touching  the  rights  of  such  petitioner  and  all  others  as 
right  and  justice  may  require.  Such  decree  shall  in  no 
manner  affect  or  impair  the  rights  of  any  carrier  of 
water  not  served  with  a  notice  of  the  petition  as  above 
required,  and  not  appearing  to  oppose  or  contest  the 
same.  All  testimony  heard  either  before  the  Court  or 
the  Referee  upon  such  petition  shall  be  reduced  to  writ- 
ing in  the  manner  hereinbefore  provided,  and  shall,  if 
heard  before  the  Court  or  Judge,  be  at  the  time  reduced 
to  writing,  and  certified  by  the  Judge  of  the  Court,  and 
filed  in  the  original  cause  in  which  such  petition  is  pre- 
sented, and  like  proceedings  shall  and  may  thereafter  be 
had  within  the  like  limitation  of  time,  for  review  or  re- 
argumeiit  of  such  supplementary  decree  as  herein  pro- 
vided; and  an  appeal  may  be  taken  and  prosecuted  for 
reviewing  such  decree  in  like  manner,,  and  under  the 
same  regulations  as  herein  provided  for  appeals  from 
such  original  decree. 

Section  36  is  the  same  as  Section  36  of  Article  VIII. 
of  the  Majority  Report. 

Sections  37  and  38  are  the  same  as  Sections  37  and 
38  of  Article  VIII.  of  the  Majority  Report,  with  the 
omission  of  the  words  "  for  irrigation." 

Sections  39  and  40  are  the  same  as  Sections  39  and 
40  of  Article  VIII.  of  the  Majority  Report. 

Section  41  is  the  same  as  Section  41  of  Article  VIII. 
of  the  Majority  Report,  with  the  omission  of  the  words 
"  for  irrigation." 

Sections  42  to  48,  inclusive,  are  the  same  as  Sections 
42  to  48,  inclusive,  of  Article  VIII.  of  the  Majority  Re- 
port. 


MINORITY    kl-l'ORT.  L'7'.> 

Si  C  i-i.  Nothing  in  this  act,  or  in  the-  decree  : 
dered  under  tlie  provisions  hereof,  shall  prevent  any 
»n,  association  or  corporation  from  instituting  in  tlie 
District  Court  having  jurisdiction  by  this  act,  for  the  as- 
certainment and  settlement  of  the  rights  and  priorities 
of  the  several  appropriators  of  water  in  any  Water  Divis- 
ions any  suit  or  action  hitherto  allowed  by  the  law  for 
establishing  any  claim  or  right  or  priority  to  divert,  con- 
or  store  water,  at  any  time  within  four  years  after 
the  entry  of  the  final  decree  provided  for  in  this  act  in 
the  Water  Division  wherein  such  right  may  be  claimed. 
No  preliminary  injunction  shall  issue  in  any  case  re- 
straining the  distribution  of  water  in  any  Water  Division 
wherein  such  final  decree  shall  have  been  rendered,  in 
conformity  with  the  provisions  of  such  decree,  or  which 
shall  affect  the  distribution  of  water  in  any  manner  ad- 
versely to  the  rights  of  the  parties  thereto,  as  thereby 
determined  and  established. 

.SEC.  50.  After  the  lapse  of  four  years  from  the 
entry  of  such  final  decree  in  any  Water  Division,  all 
persons  who  have  not  theretofore  instituted  an  action 
or  actions  as  provided  in  the  last  section,  shall 
be  forever  barred  from  setting  up  or  alleging  any  claim 
to  the  right  of  carriage  of  water  in  such  Water  Division, 
contrary  to  the  effect  of  such  decree,  save  as  hereinafter 
provided  in  cases  where  the  water  the  right  of  carriage 
of  which  has  been  acquired,  shall  not  with  reasonable 
continuity  be  applied  to  beneficial  uses. 

Sections  51  to  53,  inclusive,  are  the  same  as  sections 
51  to  53,  inclusive,  of  Article  VIII.  of  the  Majority 
Report. 

SHC.  54.  Any  person,  association  or  corporation 
claiming  to  be  entitled  to  the  enjoyment  of  the  right  of 
carriage  of  water  in  any  Water  Division  by  right 
acquired  subsequent  to  the  last  right  in  priority  of  any 
carrier  of  water  named  in  any  such  decree,  (entered  in 
pursuance  of  this  Article),  upon  procuring  the  ditch, 


1'SO  MINORITY   REPORT. 

conduit  or  other  works  by  which  such  waters  are  appro- 
priated, to  be  surveyed  and  the  notes  and  map  of  such 
survey,  as  required  by  this  Article,  to  be  approved  by 
the  State  Engineer,  and  upon  also  procuring  such  works 
to  be  measured  and  rated  or  the  capacity  thereof  esti- 
mated in  like  manner  as  hereby  required,  and  upon  pro- 
curing, to  be  filed  in  the  offi'ce  of  the  Clerk  of  the 
District  Court  to  which  in  pursuance  of  this  act  jurisdic- 
tion is  committed,  to  adjudge  and  settle  the  rights  and 
priorities  of  the  several  carriers  and  employers  of  the 
Water  Division,  a  copy  of  the  field  notes  and  map  of  the 
survey  of  such  works,  and  of  the  certificate  of  such 
measurement  and  rating  or  estimate  of  capacity  by  the 
State  Engineer,  as  required  by  this  Article,  may  apply 
by  petition  to  such  District  Court,  or  the  Judge  thereof 
in  vacation,  to  ascertain  and  settle  by  decree,  his  right 
and  the  right  of  all  others  in  said  Water  Division  sim- 
ilarly situated.  Together  with  such  petition  the  peti- 
tioner therein  shall  file  with  the  Clerk  of  the  Court  a 
certificate  from  the  State  Engineer  setting  forth  the 
names  of  all  persons,  associations  and  corporations  who, 
since  the  date  of  priority  awarded  by  the  former  decree, 
entered  in  such  Water  Division  in  pursuance  of  the 
thirty-fourth  section  of  this  Article,  to  the  carrier  of 
water  last  in  priority  in  such  decree  named,  have  filed 
in  the  office  of  the  State  Engineer  the  map  and  state- 
ment required  by  the  fourth  Article.  Upon  the  filing 
of  such  petition  the  Judge  of  the  Court  shall  appoint  a 
day  when  the  same  shall  be  heard,  and  the  Clerk  of  the 
Court  shall  thereupon  issue  and  transmit  to  the  Water 
Commissioner  of  each  Water  District  in  such  Division, 
a  citation  with  copies  thereof,  which  shall  be  served 
upon  each  carrier  of  water  named  in  the  list  of  car- 
riers aforesaid,  at  least  five  days  prior  to  the  date 
appointed  for  such  hearing,  and  thereupon  the  like 
proceedings  shall  be  had  touching  the  claim  of  the 
petitioner  and  all  other  carriers  of  water  cited  as  afore- 
said, as  herein  above  prescribed  by  this  Article,  touch- 


MINuKITY 

in*;  the  original  ascertainment  of  prioritie .- ;  /'rn. 
however^  That  the  final  decree  upon  such  petition  shall 
in  no  manner  impeach  or  impair  the  right  of  any  carrier 
of  water  named  in  such  former  decree,  or  any  decree 
entered  in  the  said  Water  Division,  or  any  employer 
of  the  water  by  any  such  carrier  diverted,  conveyed  or 
stored,  to  effect,  respectively,  the  carnage  of  and  use 
of  the  water,  to  the  carriage  whereof,  by  the  terms 
of  such  decree  such  carrier  shall  appear  to  be  entitled, 
unless  it  shall  be  made  to  appear  and  shall  be  adjudged 
that  the  right  to  the  carriage  of  such  waters  as  speci- 
fied and  awarded  in  the  former  decree  was  obtained 
by  corruption  or  fraud,  or  hath  been  lost  by  failure 
to  apply  the  same  to  beneficial  uses  with  reasonable 
continuity,  or  otherwise,  nor  unless  such  carrier,  his 
heirs,  assigns,  or  those  entitled  under  him,  to  the 
use  of  such  waters,  be  cited  and  be  made  party  to 
such  petition,  and  such  corruption  or  fraud  or  the  failure 
to  apply  such  waters  to  a  beneficial  use,  or  loss  of  the 
right  to  the  carriage  of  such  waters,  be  in  such  petition 
expressly  averred. 

Sections  55  and  56  are  the  same  as  sections  55  and  56 
of  Article  VIII.  of  the  Majority  Report. 

SEC.  57.  The  terms  ''Proprietor"  or  "Proprietors" 
as  used  in  this  Article  shall  be  construed  to  include  any 
person,  association  or  corporation  lawfully  entitled  to 
effect  a  carriage  of  water  by  means  of  any  ditch,  conduit, 
reservoir  or  other  works. 

SEC.  58.  Every  decree  entered  in  pursuance  of  this 
Article,  establishing  the  right  of  any  person  or  corpora- 
tion to  dirvert,  convey  or  store  water,  shall  expressly 
provide  that  such  person  or  corporation  shall  divert, 
convey  or  store  such  water  only  to  the  extent  of  the 
reasonable  needs  of  the  persons  or  corporation  using  the 
same  for  the  purposes  and  uses  by  application  to  which 
such  water  was  appropriated,  and  that  save  for  the  pur- 
pose of  supplying  cities  and  towns,  water  for  domestic 


MINORITY  REPORT. 

purposes  solely  shall  not  be  allowed  to  flow  in  any  such 
works  when  such  water  is  needed  for  direct  irrigation. 


ARTICLE  IX. 

OF    PUBUC    AND   OTHER   CARRIERS   OF  WATER. 

SECTION  i.  It  shall  not  be  lawful  for  any  person, 
association  or  corporation  owning-  or  controlling,  or 
claiming  to  own  or  control,  any  ditch,  conduit,  reservoir 
or  other  works  diverting,  conveying  or  storing,  or  de- 
signed for  the  conveyance  or  storage  of  water  when 
such  water  is  diverted,  conveyed  or  stored  in  whole  or 
in  part  for  hire,  or  to  be  applied  to  beneficial  uses  in 
whole  or  in  part  by  others  than  those  owning  or  claim- 
ing to  own  such  works,  or  for  any  public  carrier  of 
water  affecting  the  carriage  of  water  by  means  of  such 
works,  to  demand,  bargain  for,  accept  or  receive  from 
any  person  who  may  apply  for  water  diverted,  conveyed 
or  stored  by  means  of  any  such  works  for  the  purpose 
of  applying  the  same  to  any  beneficial  use,  any  money 
or  other  valuable  thing  whatsoever,  or  any  promise  or 
agreement  therefor,  directly  or  indirectly,  as  royalty, 
bonus  or  premium,  prerequisite  or  condition  precedent 
to  the  right  or  privilege  of  procuring  such  water;  but 
such  water  shall  be  conveyed  or  stored  and  delivered 
according  to  the  right  of  the  person  entitled  to  the  en- 
joyment thereof,  upon  the  payment  or  tender  of  the 
charges  for  the  carriage  of  water  by  means  of  such 
works  fixed  by  the  County  Commissioners  of  the  proper 
county,  as  is  or  may  be  provided  by  law.  Any  and  all 
moneys  and  every  valuable  thing  or  consideration  of 
whatsoever  kind,  which  shall  be  so  as  aforesaid  de- 
manded, charged,  bargained  for,  accepted,  received  or 
retained,  contrary  to  the  provisions  of  this  section,  shall 
be  deemed  and  held  an  additional  and  corrupt  rate, 
charge  or  consideration  for  the  carriage  of  water  intended 
to  be  furnished  and  delivered  therefor,  or  because  there- 


MINORITY    KKI'OKT.  288 

of,  and  \vholly  extortionate  ami  illegal,  and  when 
or  delivered  or  surrendered,  may  be  recovered  back  by 
the  party  or  parties  paying,  delivering  or  surrendering 
the  same  from  the  party  to  whom  or  for  whose  use  the 
same  shall  have  been  paid,  delivered  or  surrendered, 
together  with  all  costs  of  suit,  including  reasonable  fees 
of  attorneys  of  plaintiff,  by  proper  action  in  any  Court 
having  jurisdiction. 

SEC.  2.  Every  person,  association  or  corporation 
owning  or  controlling,  or  claiming  to  own  or  control 
any  ditch,  conduit,  reservoir  or  other  works,  as  is 
mentioned  in  the  first  section  of  this  Article,  who  shall, 
after  demand  in  writing  made  upon  him  for  the  supply 
or  delivery  from  such  works  of  water  for  application  to 
any  beneficial  use,  and  after  tender  of  the  lawful 
rate  of  compensation  for  the  carriage  thereof  in. 
lawful  money,  demand,  require,  bargain  for,  accept, 
receive  or  retain  from  the  party  making  such  application 
any  money  or  other  thing  of  value,  or  any  promise  or 
contract,  or  any  valuable  consideration  whatever,  as 
such  royalty,  bonus,  premium,  prerequisite  or  condition 
precedent,  as  is  by  the  provisions  of  the  first  section 
of  this  Article  prohibited,  shall  be  deemed  guilty  of  a 
misdemeanor,  and  on  conviction  thereof  shall  be 
punished  by  a  fine  of  not  less  than  one  hundred  dollars, 
nor  more  than  five  thousand  dollars,  or  imprisonment 
for  a  term  of  not  less  than  three  months  nor  more  than 
one  year,  or  both  such  fine  and  imprisonment,  in  the 
discretion  of  the  Court. 

SEC.  3.  Every  person,  association  or  corporation 
owning  or  controlling,  or  claiming  to  own  or  control  any 
ditch,  conduit,  reservoir  or  other  works,  such  as  is  men- 
tioned in  the  first  section  of  this  article,  who  shall,  after 
demand  in  writing  made  upon  him  for  the  supply  or  de- 
livery of  water  for  application  to  any  beneficial  use,  to 
be  delivered  from  the  ditch,  conduit  or  reservoir  owned, 
possessed  or  controlled  by  him,  and  after  tender  of  the 


k  284  MINORITY   REPORT. 

lawful  rate  of  compensation  therefor  in  lawful  money, 
refuse  to  furnish  or  carry  and  deliver  from  such  ditch, 
conduit  or  reservoir  or  other  works,  any  water  so  applied 
for,  which  water  can  be  or  may  be,  by  use  of  reasonable 
diligence,  in  that  behalf  and  within  the  safe  carrying  or 
storage  capacity  of  such  ditch,  conduit,  reservoir  or 
other  works,  lawfully  furnished  and  delivered,  without 
infringement  of  the  prior  rights  of  other  appropriators  of 
such  water,  shall  be  deemed  guilty  of  a  misdemeanor, 
and  upon  conviction  thereof  shall  be  punished  by  a  fine 
of  not  less  than  one  hundred  dollars,  nor  more  than  five 
hundred  dollars,  or  imprisonment  for  a  term  of  not  less 
than  three  months  nor  more  than  one  year,  or  both  such 
fine  and  imprisonment  in  the  discretion  of  the  Court; 
Provided,  however,  That  when  any  person,  association  or 
corporation  hath  heretofore  constructed,  or  shall  here- 
after construct  any  ditch,  canal,  conduit,  reservoir  or 
other  works  for  the  conveying  or  storage  of  waters  in 
part  for  the  irrigation  of  land  belonging  to  such  person 
or  corporation,  or  for  the  enjoyment  of  such  waters  in 
part  by  such  person  or  corporation  for  any  other  purpose 
whatsoever,  and  in  part  for  the  use  of  other  persons  or 
corporations,  nothing  herein  contained  shall  be  so  con- 
strued as  to  require  such  person  or  corporation  to  yield 
up  or  deliver  to  others,  or  to  suffer  to  be  used  by  others, 
the  waters  by  him  or  it  theretofore  devoted  to  beneficial 
uses;  and  every  such  person  or  corporation  shall  be  en- 
titled to  a  reasonable  time  after  the  completion  of  his 
works,  for  enclosing,  breaking  up  and  otherwise  pre- 
paring any  lands  by  him  or  it  proposed  to  be  irrigated, 
or  for  erecting  and  equipping  any  works  intended  to  be 
operated  by  means  of  such  waters,  or  for  preparing  to 
use  and  enjoy  in  any  other  way  whatsoever  the  waters 
so  diverted  for  his  or  its  purpose. 

Sections  4,  5  and  6  are  the  same  as  Sections  4,  5  and 
6  of  Article  IX.  of  the  Majority  Report. 


MINORITY     ' 

SKC.  7.  The  proprietors  of  every  reservoir  lor  the 
collection  or  storage  of  water,  which  waters  arc-  stored 
in  whole  or  in  part  for  hire  or  to  be  applied  to  beneficial 
in  whole  or  in  part,  by  others  than  the  proprietors 
of  such  works,  shall  use  reasonable  diligence  to  keep 
the  same  at  all  times  in  good  order  and  repair  and  ready 
to  receive,  hold  and  discharge  the  waters  which,  by 
means  thereof,  the  proprietors  of  such  reservoir  are  en- 
titled to  collect  or  store. 

Section  8  is  the  same  as  Section  8  of  Article  IX.  of 
the  Majority  Report. 

SEC.  9.  It  shall  be  the  duty  of  the  Superintendent 
of  such  ditch,  conduit,  reservoir  or  other  works  to  dis- 
tribute the  water,  the  right  of  carriage  of  which  by 
means  of  such  works  was  at  any  time  acquired,  to  those 
entitled  thereto,  in  accordance  with  the  date  and  extent 
of  their  several  rights  of  employment  of  such  water, 
and  in  times  of  scarcity  to  apportion  such  water  among 
those  enjoying  the  same  date  of  employment  thereof, 
according  to  the  extent  of  their  several  rights  to  the  use 
thereof.  The  several  consumers  of  water  under  any 
lateral,  may  at  any  time,  by  vote  of  a  majority  thereof, 
appoint  a  Superintendent  to  such  lateral,  who  shall  be 
charged  with  the  distribution  of  the  water  allotted 
thereto  by  the  Superintendent  of  the  ditch,  among  those 
entitled  to  the  use  of  such  waters  from  such  lateral.  A 
meeting  may  at  any  time  be  called  by  not  less  than  two 
of  the  consumers  under  such  lateral,  by  notice  in  writ- 
ing specifying  the  time,  place  and  purpose  thereof,  for 
electing  such  Superintendent  or  removing  him  and  ap- 
pointing another.  Such  Superintendent  shall  hold  his 
office  during  the  pleasure  of  the  consumers  of  water 
from  such  lateral,  or  a  majority  of  them,  and  shall 
receive  only  such  salary  or  compensation  as  they  may 
appoint. 

Section  10  is  the  same  as  Section  10  of  Article  IX.  of 
the  Majority  Report. 


:?Sr>  MINORITY   REPORT. 

'  SEC.  ii.  Any  person  having  lawfully  effected  an 
employment  of  any  of  the  water  diverted,  conveyed  or 
stored  under  any  right  of  carriage  enjoyed  by  any  public 
carrier  of  water,  shall  thereafter  in  every  year,  so  long- 
as  he  shall  make  payment  of  the  lawful  rate  for  the  car- 
riage of  such  water,  be  entitled  to  continue  in  the  enjoy- 
ment of  his  right  of  employment  of  such  water.  If  any 
consumer  of  water,  diverted  or  stored  by  means  of  the 
works  of  any  public  carrier  of  water,  shall  fail  to  pay  or 
tender  the  lawful  rate  chargeable  for  the  carriage  of  all 
or  any  part  of  the  water  to  the  right  of  employment 
whereof  he  is  entitled,  such  consumer  of  water  shall  not 
be  entitled  during  the  succeeding  year,  or  thereafter,  to 
the  use  of  that  portion  of  such  water,  upon  which  he 
shall  have  failed  to  pay  or  tender  such  charges  for  the 
carriage  thereof,  until  such  payment  so  in  default  shall 
be  made,  save  by  agreement  to  the  contrary  with  the 
carrier  of  such  water;  such  failure,  however,  shall  not 
be  taken  or  deemed  to  be  an  abandonment  of  the 
right  of  employment  of  such  water  or  any  part 
thereof,  or  work  a  forfeiture  of  such  right;  Provided, 
however,  That  if  any  consumer  of  water  delivered, 
conveyed  or  stored  by  means  of  the  works  of  any 
public  carrier,  shall  fail  for  a  period  of  more  than 
three  years  consecutively,  to  pay  or  tender  the  law- 
ful rate  of  carriage  for  any  part  of  such  water,  such 
consumer  shall  be  deemed  to  have  abandoned  and 
forfeited  his  right  of  employment  to  such  part  thereof 
as  he  shall  have  failed  to  pay  the  la-wful  charges 
of  carriage  upon,  and  such  part  of  such  waters  shall  be 
open  to  employment  by  any  other  person  desiring  to 
apply  the  same  to  any  beneficial  use  under  such  works, 
and  the  carrier  of  such  water  shall  have  a  claim  against 
such  consumer  so  in  default,  to  the  extent  to  which  he 
may  be  in  default,  for  the  carriage  of  such  water;  Pro- 
vided, further,  That  such  carrier  of  water  shall  have 
no  claim  against  such  consumer  for  any  part  of  the 
lawful  rate  of  carriage,  of  so  much  of  such  water  as 


MINORITY    RKI'ORT.  281 

such  consumer  shall  not  have  paid  or  tendered  the 
charges  of  carriage  upon,  if  such  consumer  shall  notify 
such  carrier  that  he  lias  abandoned  such  water  and  his 
claim  to  the  right  to  the  use  thereof. 

SKC.  12.  The  proprietors  of  any  ditch,  conduit,  res- 
ervoir or  other  works  for  the  diversion,  conveyance,  re- 
tention or  storage  of  water  may  procure  the  water  to  the 
right  of  carriage  of  which  they  are  entitled,  to  be  con- 
veyed, stored  and  distributed  through  and  from  like 
works  of  any  other  carrier  of  water  upon  such  terms  as 
may  be  agreed  upon  between  them,  without  in  any 
manner  impairing  or  affecting  their  rights  or  priorities 
in  respect  of  such  water;  Provided,  however,  That 
thereby  the  water  to  which  any  other  carrier  of  water  or 
any  consumer  of  water,  by  means  of  such  works  or  any 
other  works,  may  be  entitled  be  not  diminished;  And 
provided  further,  That  no  such  agreement  shall  be  car- 
ried into  effect  until  one  original  thereof  shall  be  filed 
in  the  office  of  the  State  Engineer,  and  the  State  Engin- 
eer shall  certify  to  the  persons  so  agreeing  his  approval 
thereof.  The  State  Engineer  may  at  any  time  with- 
draw such  approval  and  prohibit  the  further  carrying 
into  effect  of  such  agreement,  if  it  shall  appear  to  him 
that  proprietors  of  other  works  or  consumers  of  waters 
therefrom  are  injured  by  reason  of  the  carrying  into 
effect  of  such  agreement. 


ARTICLE   X. 

PROVISIONS  FOR  REGULATING  THE  PROCEEDINGS  OF  THE  BOARD 
OF  COUNTY  COMMISSIONERS  IN  DETERMINING  THE  RATES  OF 
COMPENSATION  TO  BE  CHARGED  FOR  THE  CARRIAGE  OF  WATER. 

SECTION  i.  Whenever  any  person  interested  as  car- 
rier or  consumer  in  the  water  appropriated  by  means  of 
any  ditch,  conduit,  reservoir  or  other  works,  shall  pre- 
sent to  the  Board  of  Commissioners  of  the  county  wherein 
such  person  is  entitled  to  effect  the  carriage  or  employ- 


L>SS  MINORITY  REPORT. 

inent  of  such  water,  at  any  session  thereof,  regular  or 
special,  a  petition  praying  the  Board  to  proceed  to  fix 
reasonable  maximum  rates  of  compensation  to  be  charged 
for  the  carriage  of  such  water  by  means  of  such  works, 
for  use  within  such  county;  showing  reasonable  cause 
for  such  application,  and  verified  by  the  affidavit  of  such 
petitioner,  such  Board  of  Commissioners  shall  examine 
the  same,  and,  if  from  such  petition,  or  from  affidavits 
or  testimony  produced  in  support  thereof,  they  shall  be 
of  the  opinion  that  such  application  is  made  in  good 
faith  and  that  there  is  reasonable  ground  to  believe  that 
the  rates  charged,  or  proposed  to  be  charged,  for  the  car- 
riage of  such  water  are  excessive,  or  that  for  any  reason 
the  rates  to  be  charged  for  the  carriage  of  such  water 
ought  to  be  fixed,  they  shall  enter  an  order,  not  less  than 
twenty  days  thereafter,  nor  later  than  the  third  day  of 
the  next  regular  session  of  such  Board,  when  they  will 
hear  all  parties  interested  as  owner  of  such  works,  or  as 
a  carrier  or  consumer  of  the  water  diverted,  conveyed 
or  stored  by  means  thereof;  touching  the  rates  to  be 
charged  for  the  carriage  of  such  water  by  means  of  such 
works,  and  the  Clerk  of  the  Board  shall  cause  such  order 
to  be  published  in  at  least  one  public  newspaper  pub- 
lished in  such  county,  at  least  ten  days  prior  to  the  time 
appointed  for  such  hearing. 

Sections  2  to  5,  inclusive,  are  the  same  as  Sections  2 
to  5,  inclusive,  of  Article  X.  of  the  Majority  Report. 

SEC.  6.  When  it  shall  appear  to  the  Board  that  the 
foregoing  requirements,  tendering  the  publication,  post- 
ing and  service  of  such  order  have  been  complied  with, 
the  Board  shall  proceed  to  hear  and  determine  such 
petition  without  unnecessary  delay.  Every  person 
interested  as  a  carrier  of  such  water,  or  as  a  consumer 
of  such  water,  within  the  said  County  wherein  the  pro- 
ceedings are  pending,  shall  be  entitled  to  attend  and  be 
heard,  either  in  person  or  by  counsel,  touching  the  said 
application,  and  to  produce  evidence  touching  any  mat- 


MINORITY    RI-I'ORT. 

ter  or   thing  whatsoever  which    mav   lend    to  show   the 

nablc  rate  of  compensation  which  the-  carrii 
such  water  should  receive  for  the  carriage  thereof,  the 
classes  into  which  the  consumers  of  such  water  should 
be  divided,  and  the  reasonable  rate  of  compensation 
which  the  several  classes  of  persons,  consumers  of  such 
water,  should  pay  for  the  carnage  thereof. 

Si.c.  7.  Upon  hearing  and  consideration  of  the  evi- 
dence which  may  be  produced  before  them,  as  well  as 
the  arguments  of  counsel  attending,  if  any,  the  said 
Board  of  Commissioners  shall  enter  an  order,  naming 
the  ditch,  conduit,  reservoir,  or  other  works,  by  means 
of  which  the  carriage  of  such  water  is  effected,  describ- 
ing the  same  with  reasonable  certainty,  and  setting  forth 
the  date  and  extent  of  each  right  of  carriage  of  water,  the 
rates  of  carriage  of  which  are  in  such  order  determined, 
and  defining  the  several  classes  of  persons  into  which 
the  consumers  of  such  water  are  divided,  and  fixing  the 
reasonable  maximum  rates  of  compensation  which  may 
be  charged  the  consumers  in  each  of  such  classes  for  the 
carriage  of  such  water. 

SEC.  8.  Every  such  order  shall  adjust  such  rates, 
saving  in  cases  of  agreement  to  the  contrary,  in  accor- 
dance with  the  distance  of  carriage  of  such  water  and 
the  period  or  periods  in  each  year  during  which  the 
several  classes  of  consumers  customarily  receive  such 
water,  and  so  that  for  each  mile  or  fraction  thereof 
through  which  such  water  is  conveyed  a  reasonable 
increment  be  made  to  the  maxumin  rate  to  be  charged 
the  several  classes  of  consumers  of  such  water  for  the 
carriage  thereof.  Every  such  order  shall  define  the 
several  classes  into  which  the  consumers  of  water  are 
grouped,  either  on  the  basis  of  their  dates  of  employ- 
ment of  such  water  or  on  some  other  well  defined  basis. 
In  any  such  classification  of  the  consumers  of  such 
water,  those  consumers  whose  employment  of  water 
is  limited  to  a  number  of  acre  feet  per  annum  may  be 

37 


290  MINORITY   REPORT. 

classed  separately  from  those  entitled  to  use  a  given 
number  of  cubic  feet  of  water  per  second  at  any  and  all 
times  during  the  year  when  the  same  may  be  needed  for 
the  uses  to  which  such  water  may  be*  lawfully  applied, 
and  those  consumers  of  water  stored  as  well  as  conveyed 
may  be  classed  separately  from  those  consumers  simply 
using  water  conveyed  but  not  stored,  and  other  classes 
may  be  made  as  right  and  justice  may  seem  to  require. 
Every  such  order  shall  be  in  force  for  the  term  of  two 
years  next  thereafter  ensuing,  unless,  upon  like  notice  as 
herein  required  upon  the  original  petition  and  due 
cause  shown  therefor,  the  same  shall  be  changed  by  the 
Board  of  County  Commissioners,  and  until  other  order 
made  in  the  premises  after  the  lapse  of  such  period. 

SEC.  9.  If  it  shall  appear  to  the  Board  that  the  rates 
theretofore  customarily  charged  or  proposed  to  be 
charged  by  the  proprietors  of  such  works,  or  others,  for 
the  carriage  of  water  thereby,  have  not  been  nor  are  un- 
reasonable or  excessive,  and  that  to  prescribe  or  fix  the 
maximum  rate  is  unnecessary  or  inexpedient,  the  Board 
may  dismiss  the  petition  or,  in  their  discretion,  adjourn 
the  matter  to  another  day,  and  continuances  of  the  hear- 
ing may  be  granted  from  day  to  day  or  for  any  time  in  the 
discretion  of  the  Board. 

Sections  10  to  15,  inclusive,  are  the  same  as  sections 
10  to  15,  inclusive,  of  Article  X.  of  the  Majority  Report. 

SEC.  16.  If  it  shall  appear  to  the  Board  upon  such 
hearing  that  the  rates  theretofore  customarily  charged 
by  the  proprietors  of  such  works,  or  proposed  to  be 
charged  for  the  carriage  of  water  thereby,  are  excessive 
and  extortionate,  the  cost  of  such  proceeding  shall  be 
taxed  against  the  proprietors  of  such  works.  If  it  shall 
appear  to  the  Board  that  such  petition  was  presented 
without  any  good  cause  therefor,  the  costs  shall  be  taxed 
against  the  petitioner.  In  other  case  the  costs  shall  be 
divided  as  to  the  Board  shall  seem  equitable.  No  party 


MINORITY    RKI'okT.  !>'.}  1 

shall  be  permitted  to  examine  more  than  four  witnesses 
to. establish  the  same  matter  of  fact. 

Si-:c.  17.  If  either  member  of  the  Board  of  County 
Commissioners,  wherein  such  petition  is  presented,  be 
interested  in  the  works  named  in  such  petition  as  pro- 
prietor or  encumbrancer  thereof,  or  be  a  consumer  of 
water  therefrom  for  any  purpose  whatsoever,  he  shall 
cause  the  fact  of  such  interest  to  be  suggested  and  en- 
tered of  record,  and  thereupon  an  order  shall  be  made 
changing  the  venue  in  such  proceeding  to  some  other 
county  where  no  part  of  the  ditch,  conduit  or  other 
works  named  in  such  petition  is  situate,  and  where  no 
water  from  such  works  is  conveyed  or  stored  for  the  use 
of  any  of  the  inhabitants  of  such  county. 

Section  18  is  the  same  as  section  18  of  Article  X.  of 
the  Majority  Report. 

SEC.  19.  At  the  time  of  the  entry  of  any  such  order 
for  the  change  of  venue  of  such  petition,  such  Board  of 
County  Commissioners  shall  also,  by  order,  fix  a  time 
not  less  than  ten  days  thereafter  when,  at  some  conven- 
ient place  in  their  county  to  be  named  in  such  order, 
depositions  may  be  taken  before  some  Justice  of  the 
Peace,  Notary  Public,  or  Clerk  of  the  District  Court,  or 
County  Court,  in  behalf  of  every  person  interested  in 
the  question  of  the  reasonable  maximum  rates  which 
ought  to  be  charged  for  the  carriage  of  water  diverted, 
conveyed,  or  stored  by  means  of  such  works,  or  any 
matter  of  fact  bearing  upon  the  question;  and  at  the 
time  and  place  named  in  such  order  and  from  thence 
from  day  to  day,  or  as  the  convenience  of  the  parties 
may  require;  the  Justice  of  the  Peace,  Notary  Public  or 
other  officer  named  shall  attend  at  the  place  in  such 
order  mentioned,  and  take  the  depositions  of  all  witnesses 
produced  before  him  by  any  party  for  examination;  and 
any  party  claiming  to  be  interested  in  the  controversy 
may  attend  and  examine,  or  cross-examine,  every  such 
witness.  Such  depositions  shall  be  reduced  to  writing 


292  MINORITY   REPORT. 

by,  or  under  direction,  of  such  officer,  in  the  narrative 
form  (save  where,  as  to  any  particular  matter,  any  party 
may  request  that  the  interrogatory  and  answer  be  set 
down),  and,  upon  the  completion  of  the  examination  of 
all  witnesses  produced,  the  same  shall  be  certified  to  by 
the  officer  taking  the  same  and  transmitted  to  the  Clerk 
of  the  Board  of  County  Commissioners  of  the  County 
to  which  the  venue  is  changed.  Every  such  deposition 
shall  show  and  set  forth  in  whose  behalf  the  witnesses 
are  severally  produced,  and  the  officer  shall  affix  a  mem- 
orandum subscribed  by  him,  showing  by  whom  the  fees 
of  such  witnesses  for  their  attendance,  and  his  fees  for 
the  taking  of  such  depositions,  are  paid  and  the  amount 
of  such  fees. 

Sections  20  and  21  are  the  same  as  Sections  20  and 
21  of  Article  X.  of  the  Majority  Report. 


ARTICLE  XL 

OF  THE   ROTATION   OF    WATER. 

Same  as  Article  XL  of  the  Majority  Report. 


ARTICLE  XII. 

OF  SUBTERRANEAN  WATERS  AND  ARTESIAN  WELLS. 

SECTION  i.  Any  person  owning  or  controlling  any 
tract  or  parcel  of  land  shall  be  entitled  to  at  any  time, 
apply  to  beneficial  uses  upon  such  land  the  waters  of  any 
natural  lake  or  pond  having  no  natural  outlet,  situate 
upon  such  land,  the  rain  and  snow  waters  falling  upon 
such  land  and  any  of  the  water  theretofore  lawfully  used 
in  the  irrigation  of  any  part  of  such  land,  which  may 
have  seeped,  drained  or  discharged  into  any  ravine  or 
surface  channel  upon  such  land,  and  any  of  the  water 
percolating  in  or  through  such  land  and  not  part  of  the 
water  of  any  natural  stream  or  well  defined  subterranean 
channel. 


MINORITY  ki-;r>  •_".»:; 

SEC.  2.  Whenever  the  State  Engineer  shall  have  pre- 
sc-nted  to  him  reasonable  evidence  that  any  person,  such 
as  mentioned  in  the  preceding  section,  shall  under  a 
claim  of  using  the  waters  therein  mentioned  be  divert- 
ing, conveying  or  storing  the  water  of  any  natural 
stream  or  well  defined  subterranean  channel  to  the 
carriage  or  employment  of  which  any  other  person  is 
entitled,  the  State  Engineer  shall  from  the'  best  infor- 
mation accessible  to  him,  ascertain  and  determine  what 
waters  any  such  person  is  entitled  to  use  and  what  not, 
and  shall  in  writing  direct  the  Superintendent  of 
Irrigation  of  the  proper  division  and  the  Water  Com- 
missioner of  the  proper  District  accordingly,  reserving, 
however,  to  every  person  aggrieved  the  right  to  apply 
for  relief  to  the  District  Court  whereunto  by  this  act  is 
committed  jurisdiction  for  settling  and  adjudicating  the 
rights  and  priorties  of  the  carriers  and  consumers  of 
water  in  such  Water  Division. 

Sections  3  to  12  inclusive  are  the  same  as  sections  i 
to  10  inclusive  of  Article  XII.  of  the  Majority  report. 


ARTICLE   XIII. 

OF  UNLAWFUL  INTERFERENCE  WITH  AND  MALICIOUS  INJURIES  TO 
WORKS  FOR  THE  DIVERSION,  CONVEYANCE  OR  STORAGE  OF 
WATER. 

Same  as  Article  XIII.  of  the  Majority  Report. 


ARTICLE    XIV. 

OF    THE   DRAINAGE   OF    LANDS. 

SEC.  I.  The  proprietor  of  any  lands  which  have 
become  saturated  shall  be  entitled  to  excavate  trenches, 
or  to  construct  drains,  or  other  works,  for  withdrawing 
water  from  such  lands  and  conveying  the  same  into  any 
.natural  s_tream  or  water  course. 


294  MINORITY   REPORT. 

Section  2  is  the  same  as  section  2  of  Article  XIV.  of 
the  Majority  Report. 

SEC.  3.  Every  such  proprietor  shall  be  entitled  to 
have  all  such  waters  conveyed  in  the  drains  or  works  of 
others,  or  cause  such  works  to  be  enlarged,  by  proceed- 
ing as  provided,  with  reference  to  the  carriage  of  water 
by  means  of  the  works  of  others,  in  the  Third  Article 
of  this  Act. 


ARTICLE   XV. 

OP   THE    INCORPORATION   OF    WATER   DIVISIONS    AND   WATER 
DISTRICTS. 

Sections  i  to  20,  inclusive,  are  the  same  as  sections  i 
to  20,  inclusive,  of  Article  XV.  of  the  Majority  Report. 

SEC.  21.  Every  such  Board  of  Directors  shall  have 
power: 

First — To  adopt  by-laws,  not  inconsistent  with  this 
act  or  any  other  law  of  the  State  of  Colorado,  for  enforc- 
ing the  economical  use  of  water  and  preventing  waste 
thereof. 

Second — To  erect,  maintain  and  operate  telephone 
lines  or  other  means  of  speedy  communication  within 
such  Water  District  for  promoting  speed  and  facility  in 
communication  between  those  controlling  the  waters  of 
such  District  and  those  entitled  to  the  enjoyment  thereof, 
and  to  demand  and  receive  reasonable  rates  and  tolls  for 
the  use  of  such  telephone  lines  or  other  means  of  com- 
munication; Provided,  howsoever,  That  no  compensa- 
tion shall  be  exacted  for  the  use  thereof  by  the  State 
Engineer,  Superintendent  of  Irrigation,  the  Water  Com- 
missioner of  the  District  or  any  assistants  of  said  officers, 
or  either  of  them,  for  transmitting  any  message  relating 
to  their  official  duties. 

Third — To  construct  ditches,  conduits,  reservoirs  or 
other  works  for  diverting,  conveying  or  storing  water 


MIN<  )KITV     kl-I1' 

for   application   to  beneficial    uses    within    such    Water 
District. 

Fourth — To  purchase  or  take  in  the  same  manner 
and  in  pursuance  of  the  Statutes  regulating  the  exer- 
cise of  the  right  of  eminent  domain,  any  ditch, 
conduit,  reservoir  or  other  works  situate  within  such 
Water  District  and  used  for  the  diversion,  convey- 
ance or  storage  of  water,  together  with  the  franchises 
and  rights  of  the  owners  of  such  works  and  carriers 
of  water  by  means  thereof,  whenever  it  shall  appear 
to  such  Board  of  Directors  that  the  owners  of  such 
works  or  the  carriers  of  water  thereby  have,  through 
negligence  or  otherwise,  customarily  or  repeatedly  failed 
to  comply  with  the  provisions  of  this  act,  or  will- 
fully or  through  negligence  jeopardized  the  rights  of 
the  consumers  of  water  conveyed  or  stored  by  means  of 
such  works,  or  that  by  reason  of  couflcts,  disputes  or 
continued  difficulties  between  such  owners  or  carriers 
and  .such  consumers  touching  the  rates  of  compensation 
to  be  charged  for  the  carriage  of  such  water,  or  any 
other  matter  relative  to  the  carriage  of  such  water,  the 
public  welfare  is  threatened  or  the  equal  rights  of  indi- 
viduals or  the  general  well-being  of  the  State  is  in- 
fringed. 

Fifth — To  construct  works  for  draining  marshy  or 
saturated  lands  and  collecting  waters  therefrom  and 
returning  the  same  to  the  natural  streams. 

Sixth — To  construct  works  for  improving  the  natural 
streams  within  such  Water  District,  confining  the  same 
to  their  channels  and  preventing  the  waste  of  the  waters 
thereof. 

Seventh — To  lease,  purchase  or  take,  in  pursuance  of 
the  Statutes  regulating  the  right  of  eminent  domain,  the 
lands  and  other  property  necessary  for  the  site  of  such 
ditches,  reservoirs  or  other  works,  or  for  the  line  and 
stations  of  such  telephone  lines  or  other  means  of  speedy 


MINORITY   REPORT. 

communication,  and  to  sell  and  dispose  of  any  such 
properties,  or  any  materials,  tools  or  supplies  .when  the 
same  shall  be  no  longer  needed. 

Eighth— -To  prescribe,  enforce  and  collect  penalties, 
not  exceeding  a  fine  of  three  hundred  dollars  for  any  one 
offense,  from  all  persons  who  shall  violate  any  by-law 
made  by  such  Board  of  Directors  for  prohibiting  'the 
waste  of  water  or  extravagance  in  the  use  thereof. 

Ninth — To  employ  and  discharge  such  servants  as 
may  be  necessary  for  the  purposes  aforesaid,  and  such 
policemen  as  may  be  necessary  for  enforcing  their  by- 
laws, to  prescribe  their  duties  and  powers  and  to  fix 
their  compensation. 

Tenth — To  prescribe  reasonable  and  necessary  by- 
laws, not  inconsistent  with  this  act  or  the  laws  af  the 
State,  for  carrying  into  effect  the  powers  aforesaid  and 
regulating  the  exercise  thereof,  and  for  prescribing  the 
time,  manner  and  places  of  the  ele.ction  in  such  District, 
and  the  rate  and  manner  of  assessment  and  collection  of 
the  taxes  to  be  levied  in  pursuance  hereof. 

Eleventh — To  prescribe  and  enforce  the  collection  of 
reasonable  annual  payments  by  the  consumers  of  the 
water  diverted,  conveyed  or  stored  by  means  of  the  works 
constructed,  purchased  or  acquired  by  condemnation  in 
pursuance  of  any  of  the  powers  hereinbefore  granted; 
to  so  regulate  such  annual  payments  that  the  same  shall 
be  sufficient  to  meet  the  annual  cost  of  operation  and  the 
maintenance  of  such  works  and  to  pay  the  annual  inter- 
est and  extinguish  by  means  of  a  sinking  fund,  if  neces- 
sary, the  principal  of  any  loan  made  for  the  purchase 
or  construction  of  any  such  works  within  the  period  for 
which  said  loan  is  contracted,  which  shall  not  exceed 
twenty-five  years. 

Twelfth — To  borrow  money  and  issue  its  bonds  paya- 
ble at  such  time  as  the  Board  of  Directors  may  by  reso- 
lution prescribe,  and  bearing  interest  at  not  exceeding 


MINORITY    KHI'ORT.  •_".  I  7 

six  per  cent,  per  annum,  payable  semi-aiinually,  at  such 
place  as  may  be  prescribed  in  such  bonds;  and  to  use 
such  money  for  effecting  the  construction  of  the  works, 
or  the  purchase,  lease  or  condemnation  of  the  properties 
or  rights  lawfully  constructed  or  acquired  under  the 
powers  hereinbefore  prescribed ;  and  to  levy  and  collect 
in  each  year,  upon  all  real  and  personal  property  within 

such  Water  District  a  tax  not  exceeding mills 

upon  each  dollar  of  assessed  valuation  thereof,  for  use 
in  the  purchase  of  materials,  the  employment  of  the 
servants  and  policemen,  the  payment  of  the  annual 
interest  and  extinguishment  by  means  of  a  sinking  fund, 
if  necessary,  of  the  principal  of  any  lawful  loans  made 
as  hereinbefore  prescribed,  upon  which  the  annual  pay- 
ments prescribed  in  section  12  hereof  shall  be  insufficient 
or  for  any  reason  inadequate  to  meet  the  purposes  to  which 
the  same  are  therein  required  to  be  applied ;  Provided, 
-jer,  That  no  such  loans  shall  be  contracted  save  "by 
by-law  irrepealable  until  the  indebtedness  shall  have 
been  fully  paid  or  discharged,  specifying  the  purposes 
to  which  such  particular  fund  so  to  be  borrowed  shall  be 
applied,  and  that  no  such  indebtedness  shall  be  con- 
tracted beyond  the  limit  upon  which  a  tax  of  mills, 
levied  upon  each  dollar  of  the  assessed  valuation  of  the  real 
and  personal  property  within  the  district,  will  pay  the  an- 
nual interest  and  be  sufficient  to  extinguish  the  principal 
within  a  period  of  twenty  yeaas;  And,  provided  further, 
That  no  such  loan  shall  be  consummated  until  at  some 
election  of  a  Director  in  such  Water  District  two-thirds  of 
the  electors  of  such  Water  District,  who  have  in  the  pre- 
ceding year  paid  a  property  tax  in  some  one  of  the 
counties  extending  into  such  Water  District,  shall  vote 
in*favor  thereof. 

Sections  22  to  26  inclusive,  are  the  same  as  sections 
22  to  26  inclusive,  of  Article  XV.  of  the  Majority 
Report. 


298  MINORITY   REPORT. 

SEC.  27.  Every  such  Water  Division  becoming  in- 
corporated pursuant  to  the  foregoing  section,  shall  be 
governed  by  a  Board  of  Directors  and  the  same  officers, 
of  the  same  number  and  title  as  of  the  Water  District, 
who  shall  be  first  appointed  and  afterwards  elected,  and 
vacancies,  in  the  number  of  which  Directors,  shall  be 
filled  hi  the  same  manner  as  hereinbefore  provided  touch- 
ing the  Water  Districts.  Said  Board  of  Directors  shall 
have  the  same  powers  as  herein  prescribed  for  the  Board 
of  Directors  of  the  Water  Districts,  and  the  by-laws 
thereof  may  be  enforced  in  the  same  manner.  Wher- 
ever, in  any  Water  Division,  persons  or  corporations  are 
entitled  to  effect  the  carriage  or  employment  of  water  by 
means  of  works  situated  in  the  lower  portions  of  the 
Division,  or  at  great  distances  from  the  sources  of  sup- 
ply, and  such  persons  or  corporations  enjoy  an  early  date 
of  appropriation  of  water,  and  where,  in  order  that  water 
may  flow  to  such  persons  or  corporations,  great  waste  is 
occasioned  and  the  efficiency  of  the  streams  of  the  Division 
is  thereby  greatly  diminished,  the  Directors  of  the  Water 
Division  may  agree  with  such  carriers  and  consumers  of 
water  that  they  abandon  their  rights  to  the  carriage  or 
use  of  such  water  and  take  a  new  date  of  carriage  and 
employment  therefor,  subsequent  to  the  date  of  appro- 
priation enjoyed  by  those  persons  higher  up  upon  the 
streams. 

Section  28  same  as  section  28  of  Article  XV.  of  the 
Majority  Report. 

SEC.  29.  The  Board  of  Directors  of  such  Water 
Division  may  enact  reasonable  by-laws  not  in  conflict 
with  this  act  or  the  laws  of  the  State,  regulating  the 
manner  of  submitting  the  question  of  such'purchase^to 
the  electors  of  such  Water  Division,  and  for  ascertaining 
and  certifying  the  result  of  such  submission.  Every 
such  agreement  touching  the  compensation  to  be  paid 
for  any  right  of  carnage  or  right  of  employment  of  water 
shall  specify  and  set  down  the  maximum  price  to  be 


MINORITY  Ri:r< 

paid  for  the  rights  of  carriage  of  water  by  means  of  any 
ditch,  conduit  or  other  works,  or  the  rights  of  employ- 
ment of  the  water  diverted  thereby,  which  are  proposed 
to  be  obtained,  whether  a  loan  is  proposed  to  be  made 
therefor  or  whether  the  amount  is  to  be  raised  by  taxa- 
tion, the  period  of  such  loan,  if  any,  and  the  rate  of 
interest  to  be  paid  thereon. 

Section  30  same  as  section  30  of  Article  XV.  of  the 
Majority  Report. 

SEC.  31.  Whenever  the  Board  of  Directors  of  any 
Water  Division  shall  propose  to  agree  with  those  entitled 
to  effect  the  carriage  or  enjoy  the  use  of  water,  as  here- 
inbefore provided,  they  shall  prepare  and  cause  to  be 
filed  in  the  office  of  the  State  Engineer  a  certificate  of 
their  intention  in  that  behalf,  and  set  forth  the  name 
of  the  ditch,  conduit  or  other  works  by  means  of 
which  the  rights  proposed  to  be  secured  are  enjoyed,  and 
in  case  such  abandondent  of  the  rights  of  such  carriers 
and  consumers  of  water  be  consummated,  either  by 
mutual  agreement  or  condemnation  in  pursuance  hereof, 
such  carriers  and  consumers  shall  be  entitled  to  divert, 
convey,  store  and  use  water  to  the  extent  enjoyed  pre- 
vious to  such  abandonment,  but  the  date  of  carriage 
thereof  shall  be  as  of  and  from  the  date  of  filing  such 
certificate  by  the  Board  of  Directors  of  such  Water  Divis- 
ion, and  all  rights  of  employment  and  rights  of  carriage 
acquired  after  the  date  of  filing  such  certificate  shall  be 
subject  to  the  rights  of  the  carriers  and  consumers  of 
water  by  means  of  such  ditches,  condnits  or  other  works; 
provided  such  purchase  be  consummated  within  two 
years  after  the  filing  of  such*certificate. 

Sections  32  to  40,  inclusive,  are  the  same  as  sections 
33  to  41,  inclusive,  of  Article  XV.  of  the  Majority 
Report. 


MINORITY   REPORT. 


ARTICLE   XVI. 

HE    PUNISHMENT    OF    < 
BY   THIS   ACT. 

Same  as  Article  XVI.  of  the  Majority  Report. 


OP  PROVISIONS    FOR   THE    PUNISHMENT    OF    OFFENSES    PRESCRIBED 
BY   THIS   ACT. 


